Can a Virginia locality like York County, worried about Chesapeake Bay pollution, pass an ordinance restricting or banning fertilizer use on lawns?

Plain-English summary

Almost all of York County drains into the Chesapeake Bay, and the Bay's health drives both the county's residential quality of life and its tourism and watermen-based economies. Citizen groups had been pressing the Board of Supervisors to ban or stringently regulate the application of fertilizers and lawn chemicals. The county attorney asked the Attorney General whether a Virginia locality even had authority to adopt such an ordinance.

Acting AG William Mims concluded yes. Two statutes drive the answer. Section 3.2-3602 preempts local regulation of fertilizer "registration, packaging, labeling, sale, or distribution," but does not touch local regulation of fertilizer "use or application." Section 15.2-924.1(A) then expressly allows localities to regulate the use, application, or storage of fertilizers, provided the ordinance is consistent with the Chesapeake Bay Preservation Act, the Erosion and Sediment Control Law, the Stormwater Management Act, or other nonpoint-source regulations. Of those, the Stormwater Management Act, at § 10.1-603.7(A), supplies the operational authorization: a locality may adopt stormwater management ordinances more stringent than the Virginia Soil and Water Conservation Board's minimum requirements, but only if (1) the ordinance is based on factual findings from a comprehensive watershed management study, an MS4 permit, or a locally adopted watershed study; (2) the locality determines the ordinance is necessary to prevent further water degradation or address specific existing water pollution; and (3) the locality holds a public hearing after due notice.

The opinion supports the authority by pointing to the VSMP Permit Regulations themselves, which require MS4 permittees to include a program to reduce stormwater pollutants from fertilizer application as "appropriate" through educational activities, permits, certifications, and other measures. That regulatory architecture treats fertilizer-application control as a recognized stormwater pollution control tool.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Dillon Rule of strict construction governs all Virginia local legislative power: localities have only those powers expressly granted, those fairly implied from express grants, and those essential and indispensable. Any doubt resolves against the locality. So a fertilizer-use ordinance needs an express enabling statute (or a power necessarily implied from one).

The relevant statutory pieces:

• Section 3.2-3602 (fertilizer law): "No locality shall regulate the registration, packaging, labeling, sale, or distribution of fertilizers." This is a state-level preemption, but its scope is limited to commerce in fertilizer (the upstream supply chain), not the downstream "use" of fertilizer by end users.
• Section 15.2-924.1(A) (local government chapter): "No locality shall regulate the use, application, or storage of fertilizers ... except by ordinances consistent with the requirements of the Chesapeake Bay Preservation Act, the Erosion and Sediment Control Law, the Stormwater Management Act, or other nonpoint source regulations promulgated by the Department of Conservation and Recreation or the Soil and Water Conservation Board." This is written as a prohibition with a list of exceptions, but the effect is to authorize ordinances consistent with the listed environmental programs.
• Section 10.1-603.7(A) (Stormwater Management Act): the locality-stringent provision the AG identified as the operational hook. Allows ordinances more stringent than the state minimums, conditioned on watershed-study factual findings, a necessity determination, and a public hearing.
• VSMP Permit Regulations (4 VAC § 50-60-380(C)(2)(d)(1)(f)): require MS4 permit applicants to describe a program to reduce pollutants from fertilizer application "to the maximum extent practicable," recognizing the regulatory role of fertilizer-use controls.

Read together, the AG concluded these provisions authorize a fertilizer-use ordinance if the locality threads the procedural requirements of § 10.1-603.7(A).

Common questions

What specific procedural steps does a locality have to follow?

Under § 10.1-603.7(A) the locality must (1) base the ordinance on factual findings from a comprehensive watershed management study, an MS4 permit implementation, or a locally adopted watershed management study; (2) make a determination that the ordinance is necessary to prevent further degradation to water resources or to address specific existing water pollution (nutrient and sediment loadings, stream channel erosion, depleted groundwater, or excessive localized flooding); and (3) hold a public hearing after due notice before adoption.

Could a locality ban fertilizer altogether?

The opinion says ordinances may "regulate or prohibit the use or application of fertilizers." Whether an outright prohibition would survive a Dillon Rule challenge or a state preemption challenge would turn on whether the prohibition was supported by the same watershed findings and necessity determination that § 10.1-603.7(A) requires. A locality going for a total ban would need particularly strong factual support.

Does this opinion apply outside the Chesapeake Bay watershed?

Yes. Section 15.2-924.1(A) lists the Chesapeake Bay Preservation Act as one of several alternative anchors; the Stormwater Management Act is another and is statewide. The factual findings under § 10.1-603.7(A) need to support the locality's particular water-quality concern, which need not be Bay-related.

What about Section 3.2-3602's preemption? Doesn't that bar fertilizer regulation?

No. The AG specifically distinguished § 3.2-3602's preemption of local regulation of "registration, packaging, labeling, sale, or distribution" from local regulation of "use or application." A locality cannot prevent a retailer from selling a given fertilizer, but it can regulate when, how, and whether end users apply it.

Citations

• Va. Code Ann. § 3.2-3602 (preempting local fertilizer registration/sale/distribution regulation only)
• Va. Code Ann. § 15.2-924.1(A) (local fertilizer-use ordinances permitted if consistent with listed environmental statutes)
• Va. Code Ann. § 10.1-603.7(A) (more stringent stormwater ordinances; findings, necessity, hearing)
• Va. Code Ann. §§ 10.1-560 et seq. (Erosion and Sediment Control Law)
• Va. Code Ann. §§ 10.1-2100 et seq. (Chesapeake Bay Preservation Act)
• 4 Va. Admin. Code § 50-60-380(C)(2)(d)(1)(f) (VSMP Permit Regulations recognizing fertilizer-use controls)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-035-Barnett.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

September 1, 2009

James E. Barnett, Esq.
York County Attorney
P.O. Box 532
Yorktown, Virginia 23690-0532

Dear Mr. Barnett:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether localities in Virginia may regulate or prohibit the use of fertilizers within their jurisdictional boundaries.

Response

It is my opinion that a Virginia locality is authorized by § 10.1-603.7(A) and § 15.2-924.1(A) to adopt an ordinance regulating or prohibiting the use or application of fertilizers within its jurisdictional boundaries provided the locality makes the factual findings required by § 10.1-603.7(A) and determines that the ordinance is necessary to prevent any further degradation to water resources or to address specific existing water pollution. The locality also must comply with the public hearing procedures required by § 10.1-603.7(A).

Background

You note that virtually all of York County drains either directly or indirectly into the Chesapeake Bay. You point out that the continued health of the Bay and its tributaries is important to the quality of residential life in the County and its tourism industry as well as the livelihoods of local watermen. Further, you note that fertilizer runoff has been identified as one of the major threats to the Bay's ecosystem. You also explain that various citizen groups in the County are concerned about the health of the Bay and have urged the York County Board of Supervisors to consider adopting a ban on, or stringent regulation of, the application of fertilizers and other lawn chemicals. Thus, you seek guidance concerning the authority of a locality to enact such a ban or regulation.

Applicable Law and Discussion

In determining the validity of a local government's exercise of legislative authority, Virginia follows the Dillon Rule of strict construction that provides "'municipal corporations have only those powers expressly granted, those necessarily or fairly implied from expressly granted powers, and those that are essential and indispensable'"[1] and its corollary that "[t]he powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication."[2] Therefore, to have the power to act in a certain area, local governments must have express enabling legislation or authority that is necessarily implied from enabling legislation.[3]

Section 3.2-3602 mandates that "[n]o locality shall regulate the registration, packaging, labeling, sale, or distribution of fertilizers." However, § 3.2-3602 does not prohibit localities from regulating the use or application of fertilizers. Section 15.2-924.1(A) addresses this question directly, providing that:

No locality shall regulate the use, application, or storage of fertilizers, as defined in Chapter 36 (§ 3.2-3600 et seq.) of Title 3.2, except by ordinances consistent with the requirements of the Chesapeake Bay Preservation Act (§ 10.1-2100 et seq.), the Erosion and Sediment Control Law (§ 10.1-560 et seq.), the Stormwater Management Act (§ 10.1-603.1 et seq.) or other nonpoint source regulations promulgated by the Department of Conservation and Recreation or the Soil and Water Conservation Board.

I am not aware of any requirements in the Chesapeake Bay Preservation Act or its implementing regulations or in the Erosion and Sediment Control Law or its implementing regulations that specifically address the authority of a locality to control the use or application of fertilizers.

The Stormwater Management Act[4] and its implementing regulations do not include any requirements concerning the regulation of fertilizer use and application by localities. However, § 10.1-603.7(A) of the Stormwater Act authorizes localities

to adopt more stringent stormwater management ordinances than those necessary to ensure compliance with the [Virginia Soil and Water Conservation] Board's minimum requirements, provided that the more stringent ordinances are based upon factual findings of local or regional comprehensive watershed management studies or findings developed through the implementation of a MS4 permit or a locally adopted watershed management study and are determined by the locality to be necessary to prevent any further degradation to water resources or to address specific existing water pollution including nutrient and sediment loadings, stream channel erosion, depleted groundwater resources, or excessive localized flooding within the watershed and that prior to adopting more stringent ordinances a public hearing is held after giving due notice.

Furthermore, the Virginia Stormwater Management Program (VSMP) Permit Regulations,[5] promulgated by the Virginia Soil and Water Conservation Board pursuant to § 10.1-603.4, require applications for VSMP permits for large and medium municipal separate storm sewer systems (MS4s) to include a management program that contains a description of control measures that will be used to reduce pollutants from stormwater runoff from commercial and residential areas, including:

A description of a program to reduce to the maximum extent practicable, pollutants in discharges from municipal separate storm sewers associated with the application of pesticides, herbicides and fertilizer that will include, as appropriate, controls such as educational activities, permits, certifications and other measures for commercial applicators and distributors, and controls for application in public right-of-ways and at municipal facilities.[6]

Thus, the VSMP Permit Regulations recognize that control of the application of fertilizers is an appropriate method to reduce pollutants in stormwater runoff.

A local ordinance that regulates the use and application of fertilizers would be a more stringent stormwater management ordinance than that necessary to comply with the Virginia Soil and Water Conservation Board's minimum requirements under the Stormwater Management Act as permitted by § 10.1-603.7(A). Such an ordinance is authorized by §§ 10.1-603.7(A) and 15.2-924.1(A) when the stated statutory requirements are met.

Conclusion

Accordingly, it is my opinion that a Virginia locality is authorized by § 10.1-603.7(A) and § 15.2-924.1(A) to adopt an ordinance regulating or prohibiting the use or application of fertilizers within its jurisdictional boundaries provided the locality makes the factual findings required by § 10.1-603.7(A) and determines that the ordinance is necessary to prevent any further degradation to water resources or to address specific existing water pollution. The locality also must comply with the public hearing procedures required by § 10.1-603.7(A).

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. Bd. of Supvrs. v. Countryside Investment Co., 258 Va. 497, 503, 522 S.E.2d 610, 613 (1999) (quoting Chesapeake v. Gardner Enters., 253 Va. 243, 246, 482 S.E.2d 812, 814 (1997)); accord Commonwealth v. County Bd., 217 Va. 558, 574, 232 S.E.2d 30, 40 (1977); Bd. of Supvrs. v. Horne, 216 Va. 113, 117, 215 S.E.2d 453, 455 (1975); City of Richmond v. Bd. of Supvrs., 199 Va. 679, 684, 101 S.E.2d 641, 645 (1958); 2008 Op. Va. Atty. Gen. 37, 38.
2. County Bd. v. Brown, 229 Va. 341, 344, 329 S.E.2d 468, 470 (1985); accord Gordon v. Bd. of Supvrs., 207 Va. 827, 832, 153 S.E.2d 270, 274 (1967).
3. Any doubt as to the existence of such power must be resolved against the locality. See Board of Supervisors, 199 Va. at 684, 101 S.E.2d at 645; 2009 Op. Va. Atty. Gen. No. 09-027, available at http://www.vaag.com/OPINIONS/2009opns/09-027-Rowan.pdf.
4. See VA. CODE ANN. tit. 10.1, ch. 6, art. 1.1, § 10.1-603.1 (not set out), §§ 10.1-603.2 to 10.1-603.15 (2006 & Supp. 2009).
5. 4 VA. ADMIN. CODE §§ 50-60-10 to 50-60-1240 (Supp. 2008) (codified in scattered sections).
6. 4 VA. ADMIN. CODE § 50-60-380(C)(2)(d)(1)(f).