Landscape & Irrigation

October 2015

Landscape and Irrigation is read by decision makers throughout the landscape and irrigation markets — including contractors, landscape architects, professional grounds managers, and irrigation and water mgmt companies and reaches the entire spetrum.

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42 October 2015 Landscape and Irrigation www.landscapeirrigation.com STAYING CURRENT e landscape industry is being impacted by many new regula- tions at the federal level. If they all go into effect, running small businesses may become even more costly and burdensome. For example, on June 30, 2015, the United States Department of Labor (DOL), Wage and Hour Division, issued proposed regu- lations to change the minimum salary threshold for executive, administrative and professional employees who are exempt from minimum wage and overtime. e proposed change would in- crease the salary threshold from $455 a week (the equivalent of $23,660 a year) to about $970 a week ($50,440 a year) in 2016. What is particularly ominous for our industry is DOL's re- quest for comments about changing the exempt employee duties test. is change in the duties test could have a significant impact on our industry. Let's assume that a supervisor or manager is responsible for a crew. e supervisor meets the present exempt duties test but performs the same work as the crew concurrently with that su- pervisor's accountability for supervision. e new regulations may bring into question the exempt status of these supervisors. It could mean that the majority of the supervisor's time must be devoted exclusively to supervisory duties. Employers oen make available to exempt employees certain types or levels of benefits compared to non-exempts. Reclassify- ing an exempt employee as nonexempt may result in that em- ployee no longer maintaining those exempt privileges. According to the National Association of Landscape Professionals (NALP) General Counsel Richard Lehr, the "service and retail industries will be hardest hit by these changes to the salary status, and, ul- timately, employers who comply by no longer classifying an em- ployee as exempt will have to implement that change in a manner that does not lead an employee to believe that he or she was paid improperly prior to that time. In other words, the change needs to be implemented without provoking litigation for a claim of mis- classification." Employers will have to look at every exempt employee and de- cide whether to increase the salary to the threshold or change the way the employee is paid, which could result in less pay for some. Bonus and incentive pay will have to be looked at and maybe re- worked. NALP is conducting surveys and working with the Small Busi- ness Administration Office of Advocacy to gather information to help fight the regulation that can hurt your business. EPA AND THE U.S. ARMY CORPS OF ENGINEERS ISSUED A FINAL WOTUS RULE e Clean Water Act (CWA) provides federal jurisdiction over "navigable waters" defined as "e Waters of the United States." e CWA prohibits the "discharge of pollutants" into the "Wa- ters of the United States" (WOTUS) without a permit. On June 29, 2015, EPA and the U.S. Army Corps of Engineers issued a final rule to redefine the WOTUS subject to regulation under the CWA. e definitions are significant because they require dis- charges to WOTUS to have CWA permits, WOTUS must meet Water Quality Standards, and citizens may sue to enforce the CWA. e rule becomes effective on August 28, 2015. e rule could restrict the ability of landscape professionals to install trees, grass and other plants that play a vital role in reducing runoff and erosion, filtering groundwater, and sequestering car- bon dioxide. e new rule will greatly expand the scope of waters subject to the CWA regulation well beyond the law's intent. Under the rule, permits may be required for activities such as removing debris and vegetation from a ditch, applying pesticides and build- ing a fence or pond, or may be required by cities when discharging pollutants. Permitting can be a costly and time-consuming process that requires small businesses to hire attorneys and environmen- tal consultants. In addition, the future development potential of certain land may be affected, which could diminish its value. Businesses also could be subjected to litigation under citizen suit provisions of the CWA. e proposed definition includes a number of terms that are subject to interpretation, such as "adjacent," "riparian area" and "floodplain." For the first time, "tributary" is defined, and includes bodies of water such as manmade and natural ditches. "Other waters" also may be subject to the jurisdiction of the CWA on a case-by-case basis if there is a "significant nexus" to tradi- tional navigable water. e expanded jurisdiction may result in significant added legal and regulatory costs for businesses. e new designations will create confusion for lawn care and landscape professionals, and make it more difficult for them to maintain their customers' property. At the very least, it can cause you to be held up on a job site waiting to see if some regulatory agency will come out and tell you if you need a permit to perform your work. Take the time to find out the potential to impact of these new issues can have on your business so that you can make adjust- ments and minimize the effects. Tom Delaney, is director of government affairs at the National Association of Landscape Professionals (formerly PLANET). What You Don't Know Will Hurt You ILLUSTRATION ABOVE ©ISTOCKPHOTO.COM/SMARTBOY10 LI ■ BY TOM DELANEY The new designations will create confusion for lawn care and landscape professionals, and make it more difficult for them to maintain their customers' property.

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