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Government Affairs: Landscape contractors will face new federal regulations in 2016

February 3, 2016 -  By

The Obama Administration, now in its last year, is trying to push through a number of new regulations that will affect landscape contractors before time runs out. Here is a run-down of the new regulatory packages that may impact your business and one that may not.

New Pesticide Rules

One of the latest regulatory changes proposed by the Environmental Protection Agency (EPA) is a sweeping overhaul of the pesticide certification program. Professionals who apply pesticides for hire in the U.S. must be certified or work under the direct supervision of someone who is certified. This new regulation, proposed in August 2015, will have a direct impact on landscape contractors.

While state governments directly administer the pesticide certification programs, those state programs are governed by the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), administered by the EPA. State pesticide certification programs operate under delegation agreements with EPA and can be no less stringent than federal law and regulations. Any changes in the EPA pesticide certification regulations flow through to the state pesticide certification programs.

The comment period for this regulation closed in January. The EPA expects to issue the final regulation in November 2016.

New Overtime Rules

New regulations proposed in July 2015 by the Wage and Hour Division of the federal Department of Labor could ratchet up your labor costs and make audits of your payroll records potentially even more expensive.

Employees who are exempt from the overtime provisions of the Fair Labor Standards Act (FLSA) now must meet three criteria: They must be paid a salary; that salary must be more than $455 a week ($23,660 annually); and they must perform work that is executive, professional, administrative or outside sales in nature.

The new regulations propose raising the salary limit for mandatory overtime for exempt workers from $455 a week ($23,660 annually) to $970 per week ($50,440 annually), more than doubling the salary limit.

What that means is that more of your employees could come under the federal overtime rules. Salaried employees who perform work that’s primarily executive, administrative, professional or outside sales that may have been exempt from mandatory overtime pay will now come under those rules if their salary is less than $50,440 annually.

The comment period on these regulations closed in September 2015, with the Department of labor receiving 293,371 comments. The regulations will be published as final in mid-2016.

Waters of the U.S. Regulation

One regulation that probably will not be implemented in 2016 is the “Waters of the U.S.” (WOTUS) regulation. In April 2014, the EPA and the U.S. Army Corps of Engineers (Army Corps) jointly issued this proposed regulation that has set off a firestorm of protest across the country.

At stake, according to some, is your ability to use your land without significant interference from the EPA and the Army Corps.

Some believe that this new regulation would significantly expand the jurisdiction of the EPA and the Army Corps. The regulation is opposed by the industries’ two major national associations, AmericanHort and the National Association of Landscape Professionals (NALP).

In May 2015, the EPA and Army Corps published the regulations as final, despite howls of protest.

Congress made several unsuccessful attempts to force EPA to withdraw the regulation. But in October 2015, a federal district court put the implementation of the regulation on hold until the federal courts could rule on its legality.

It is unlikely that the legal issues concerning WOTUS will be settled before the end of the Obama Administration. Even if the federal district court rules on the regulation in 2016, it likely will be appealed to the Supreme Court, continuing the suspension in implementation.

About the Author:

Gregg Robertson, Landscape Management's government relations blogger, is a government relations consultant for the Pennsylvania Landscape & Nursery Association (PLNA) and president of Conewago Ventures. From 2002 until May 2013 he served as president of PLNA. Reach him at gregg.robertson@conewagoventures.com.

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