File No. 364

Senate, April 11, 2012

The Committee on Environment reported through SEN. MEYER of the 12th Dist., Chairperson of the Committee on the part of the Senate, that the substitute bill ought to pass.

AN ACT RESTRICTING THE APPLICATION OF FERTILIZERS THAT CONTAIN PHOSPHATE.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2012) (a) For the purposes of this section:

(1) "Established lawn" means any area of ground that is covered with any species of grass for two or more growing seasons and that is customarily kept mowed;

(2) "Golf course" means an area solely designated for the play or practice of the game of golf, including, but not limited to, surrounding grounds, trees and ornamental beds; and

(3) "Organic lawn fertilizer" means fertilizer made from materials derived from either plant or animal products containing naturally occurring phosphorus.

(b) Notwithstanding chapter 427a of the general statutes, no person shall apply fertilizer, as defined in section 22-111b of the general statutes, that contains phosphate to an established lawn, except when: (1) A soil test approved by the Commissioner of Agriculture and performed within the previous one hundred eighty days indicates the soil is lacking in phosphorus and fertilizer containing phosphate is needed for the growth of such lawn, or (2) such fertilizer containing phosphate is used for establishing new grass or repairing such lawn with seed or sod.

(c) The provisions of this section shall not apply to: (1) Property classified as agricultural land, as defined in section 22-26bb of the general statutes, (2) a golf course, or (3) the application of organic lawn fertilizer.

(d) Notwithstanding subsection (b) of this section, no person shall apply any fertilizer, as defined in section 22-111b of the general statutes, that contains phosphate to any lawn during the period beginning November fifteenth and ending March fifteenth of the following year.

(e) Notwithstanding chapters 427a and 441 of the general statutes and subsections (b) and (d) of this section, no person shall apply any fertilizer, as defined in section 22-111b of the general statutes, that contains phosphate to any portion of a lawn that is located twenty feet or less from any brook, stream, river, lake, pond, sound or any other body of water.

(f) On and after October 1, 2012, any person who sells fertilizer, as defined in section 22-111b of the general statutes, in a retail establishment, shall separately display fertilizer products that contain phosphate from fertilizer products that do not contain phosphate. Such person shall post a sign at the point of sale for such fertilizer products that states the following: "PHOSPHATE RUNOFF CAN POSE A THREAT TO WATER QUALITY. CONNECTICUT LAW PROHIBITS: (1) THE APPLICATION OF FERTILIZER THAT CONTAINS PHOSPHATE TO AN ESTABLISHED LAWN, SUBJECT TO CERTAIN EXCEPTIONS, (2) THE APPLICATION OF FERTILIZER THAT CONTAINS PHOSPHATE TO ANY LAWN FROM NOVEMBER FIFTEENTH THROUGH MARCH FIFTEENTH, AND (3) THE APPLICATION OF FERTILIZER THAT CONTAINS PHOSPHATE TO ANY PORTION OF A LAWN THAT IS LOCATED WITHIN TWENTY FEET OF ANY BODY OF WATER.". Such sign shall be readily visible to consumers of fertilizer at such retail establishment and shall be printed in black lettering not less than thirty-eight-point type size upon a white background.

(g) The Commissioner of Agriculture may adopt regulations, in accordance with chapter 54 of the general statutes, to implement the provisions of this section.

(h) Any person who violates subsection (b), (d), (e) or (f) of this section shall be assessed a civil penalty by the Commissioner of Agriculture of five hundred dollars.

Sec. 2. Subsection (c) of section 22a-478 of the general statutes is repealed and the following is substituted in lieu thereof (Effective from passage):

(c) The funding of an eligible water quality project shall be pursuant to a project funding agreement between the state, acting by and through the commissioner, and the municipality undertaking such project and shall be evidenced by a project fund obligation or grant account loan obligation, or both, or an interim funding obligation of such municipality issued in accordance with section 22a-479. A project funding agreement shall be in a form prescribed by the commissioner. Eligible water quality projects shall be funded as follows:

(1) A nonpoint source pollution abatement project shall receive a project grant of seventy-five per cent of the cost of the project determined to be eligible by the commissioner.

(2) A combined sewer project shall receive (A) a project grant of fifty per cent of the cost of the project, and (B) a loan for the remainder of the costs of the project, not exceeding one hundred per cent of the eligible water quality project costs.

(3) A construction contract eligible for financing awarded by a municipality on or after July 1, [1999] 2012, as a project undertaken for [nitrogen] nutrient removal shall receive a project grant of thirty per cent of the cost of the project associated with [nitrogen] nutrient removal, a twenty per cent grant for the balance of the cost of the project not related to [nitrogen] nutrient removal, and a loan for the remainder of the costs of the project, not exceeding one hundred per cent of the eligible water quality project costs. [Nitrogen] Nutrient removal projects under design or construction on July 1, [1999] 2012, and projects that have been constructed but have not received permanent, Clean Water Fund financing, on July 1, [1999] 2012, shall be eligible to receive a project grant of thirty per cent of the cost of the project associated with [nitrogen] nutrient removal, a twenty per cent grant for the balance of the cost of the project not related to [nitrogen] nutrient removal, and a loan for the remainder of the costs of the project, not exceeding one hundred per cent of the eligible water quality project costs.

(4) If supplemental federal grant funds are available for Clean Water Fund projects specifically related to the clean-up of Long Island Sound that are funded on or after July 1, [2003] 2012, a distressed municipality, as defined in section 32-9p, may receive a combination of state and federal grants in an amount not to exceed fifty per cent of the cost of the project associated with [nitrogen] nutrient removal, a twenty per cent grant for the balance of the cost of the project not related to [nitrogen] nutrient removal, and a loan for the remainder of the costs of the project, not exceeding one hundred per cent of the allowable water quality project costs.

(5) A municipality with a water pollution control project, the construction of which began on or after July 1, 2003, which has (A) a population of five thousand or less, or (B) a population of greater than five thousand which has a discrete area containing a population of less than five thousand that is not contiguous with the existing sewerage system, shall be eligible to receive a grant in the amount of twenty-five per cent of the design and construction phase of eligible project costs, and a loan for the remainder of the costs of the project, not exceeding one hundred per cent of the eligible water quality project costs.

(6) Any other eligible water quality project shall receive (A) a project grant of twenty per cent of the eligible cost, and (B) a loan for the remainder of the costs of the project, not exceeding one hundred per cent of the eligible project cost.

(7) Project agreements to fund eligible project costs with grants from the Clean Water Fund that were executed during or after the fiscal year beginning July 1, 2003, shall not be reduced according to the provisions of the regulations adopted under section 22a-482.

(8) On or after July 1, 2002, an eligible water quality project that exclusively addresses sewer collection and conveyance system improvements may receive a loan for one hundred per cent of the eligible costs provided such project does not receive a project grant. Any such sewer collection and conveyance system improvement project shall be rated, ranked, and funded separately from other water pollution control projects and shall be considered only if it is highly consistent with the state's conservation and development plan, or is primarily needed as the most cost effective solution to an existing area-wide pollution problem and incorporates minimal capacity for growth.

(9) All loans made in accordance with the provisions of this section for an eligible water quality project shall bear an interest rate of two per cent per annum. The commissioner may allow any project fund obligation, grant account loan obligation or interim funding obligation for an eligible water quality project to be repaid by a borrowing municipality prior to maturity without penalty.

The following Fiscal Impact Statement and Bill Analysis are prepared for the benefit of the members of the General Assembly, solely for purposes of information, summarization and explanation and do not represent the intent of the General Assembly or either chamber thereof for any purpose. In general, fiscal impacts are based upon a variety of informational sources, including the analyst's professional knowledge. Whenever applicable, agency data is consulted as part of the analysis, however final products do not necessarily reflect an assessment from any specific department.

OFA Fiscal Note

State Impact:

Note: GF=General Fund

Municipal Impact:

Explanation

The bill expands the list of nutrients that are eligible for a 30% grant-in-aid under the Clean Water Fund (CWF) Program. This is anticipated to result in an increase of $17 million over nine years in the amount of future General Obligation bond authorizations needed for the CWF Program, which will result in a debt service cost to the General Fund.

Municipalities are required to comply with the federal mandate that phosphorus as well as nitrogen be removed from waste water. The bill will result in municipal savings of $17 million over nine years because the state will pay a portion of the cost to meet the federal requirement.

The Out Years

The General Fund fiscal impact identified above would continue into the future for the 20-year term of issuance of General Obligation bonds.

OLR Bill Analysis

sSB 254

AN ACT RESTRICTING THE APPLICATION OF FERTILIZERS THAT CONTAIN PHOSPHATE.

SUMMARY:

This bill establishes certain restrictions on using and selling fertilizer containing phosphate. The bill:

1. prohibits applying fertilizer containing phosphate to an “established lawn” except under certain conditions,

2. creates a seasonal moratorium on applying such fertilizer, and

3. bans applying fertilizer containing phosphate within 20 feet of a water body.

It exempts from these restrictions agricultural land, golf courses, and the application of fertilizer made from materials derived from plant or animal products containing naturally occurring phosphorus (“organic lawn fertilizer”).

The bill requires retail establishments to separately display fertilizer containing phosphate and post a sign about the use restrictions. It establishes a civil penalty of $ 500 for violating the restrictions or retail requirements and allows the agriculture commissioner to adopt regulations to implement the bill's fertilizer-related requirements.

The bill also expands the water quality projects eligible for Clean Water Fund moneys to include certain nutrient removal projects, as opposed to only projects for nitrogen removal.

EFFECTIVE DATE: October 1, 2012; except for the provision concerning eligible water quality project funding which is effective upon passage.

PHOSPHATE FERTILIZER APPLICATION

Fertilizer Definition

By law, fertilizer is any substance containing at least one recognized plant nutrient that is used for its plant nutrient content and designed for use or claimed to promote plant growth. It does not include unmanipulated animal and vegetable manures, marl, lime, limestone, wood, ash, and other products the agriculture commissioner exempts (CGS § 22-111b).

General Prohibition

The bill bans applying fertilizer containing phosphate to an established lawn unless:

1. an agriculture commissioner-approved soil test shows the soil lacks phosphorus, and the fertilizer is necessary for lawn growth or

2. it is used to establish new grass or repair a lawn with seed or sod.

The soil test must be performed during the 180 days before applying the fertilizer.

Under the bill, an “established lawn” is an area covered with a grass species for at least two growing seasons and customarily kept mowed.

Buffer Area Restriction

The bill prohibits applying fertilizer containing phosphate to a portion of lawn that is within 20 feet of a brook, stream, river, lake, pond, sound, or other water body.

Seasonal Restriction

The bill prohibits anyone from applying fertilizer containing phosphate to a lawn from November 15 to March 15 of the next year.

Retail Sales Requirements

Under the bill, beginning October 1, 2012, retail establishments that sell fertilizer must separately display fertilizer products containing phosphate from those that do not. They also must post a sign at the point of sale. It must be readily visible to consumers and printed in black lettering on a white background in at least 38-point type. The sign must state:

“PHOSPHATE RUNOFF CAN POSE A THREAT TO WATER QUALITY. CONNECTICUT LAW PROHIBITS: (1) THE APPLICATION OF FERTILIZER THAT CONTAINS PHOSPHATE TO AN ESTABLISHED LAWN, SUBJECT TO CERTAIN EXCEPTIONS, (2) THE APPLICATION OF FERTILIZER THAT CONTAINS PHOSPHATE TO ANY LAWN FROM NOVEMBER FIFTEENTH THROUGH MARCH FIFTEENTH, AND (3) THE APPLICATION OF FERTILIZER THAT CONTAINS PHOSPHATE TO ANY PORTION OF A LAWN THAT IS LOCATED WITHIN TWENTY FEET OF ANY BODY OF WATER.”

NUTRIENT REMOVAL PROJECT FUNDING

The bill expands the types of water quality projects eligible for Clean Water Fund moneys to include projects for nutrient removal, instead of only nitrogen removal projects. The expansion is effective upon passage but applies to certain projects on and after July 1, 2012. It appears that between those dates no nutrient removal projects will be eligible for funding.

Under the bill, a construction contract awarded by a municipality on or after July 1, 2012 that is eligible for clean water funds as a nutrient removal project must receive (1) a project grant of 30% of the project's cost associated with nutrient removal, (2) a 20% grant for project costs unrelated to nutrient removal, and (3) a loan for the rest. This is the same allocation formula available for nitrogen removal projects under current law. Nutrient removal projects under design or construction on July 1, 2012 and constructed projects without permanent clean water funding on July 1, 2012 are eligible for funding as specified above. These funds can not exceed 100% of the eligible water quality project cost.

If additional federal grant funds are available for Long Island Sound clean-up projects funded on or after July 1, 2012, a distressed municipality can receive (1) state and federal grants of up to 50% of nutrient removal project costs, (2) a 20% grant for project costs unrelated to nutrient removal, and (3) a loan for the remainder. The funds cannot exceed 100% of the allowable water quality project cost.

BACKGROUND

Agricultural Land

By law, “agricultural land” means any land in the state which, based on soil types, existing and past use for agricultural purposes, and other relevant factors, is suitable for (1) cultivating plants for production of human food and fiber and other useful and valuable plant products; (2) producing animals, livestock, and poultry useful to people and the environment; and (3) providing economically profitable farm units. It may include adjacent pastures, wooded land, natural drainage areas, and other adjacent open areas (CGS § 22-26bb).

Clean Water Fund

The state's Clean Water Fund provides financial aid to municipalities through grants and loans for the planning, design, and construction of wastewater treatment facilities. It is financed through a combination of federal and state funding.

Eligible Water Quality Project

By law, an “eligible water quality project” means the planning, design, development, construction, repair, extension, improvement, remodeling, alteration, rehabilitation, reconstruction, or acquisition of a water pollution control facility that the Department of Energy and Environmental Protection (DEEP) commissioner approves (CGS § 22a-475).

Related Bill

sSB 440, reported favorably by the Planning and Development Committee, adds phosphorus removal to the eligible projects for Clean Water Fund financing and requires the DEEP commissioner, or his designee, to work with several municipalities to develop a state-wide strategy to reduce phosphorus.

COMMITTEE ACTION

Environment Committee

Joint Favorable Substitute