Purpose: This emergency rule making amends Chapter 296-127 WAC, Prevailing wage, to provide a new scope of work specific to landscape maintenance that is separate and unique from landscape construction. Under the emergency rule, the landscape maintenance worker scope of work description is work involved in the tending to and maintenance of a previously beautified plot of land. A description of specific activities that may be within the scope and activities that are not included in the scope are listed in the rule.

An initial emergency rule (WSR 19-07-014) and CR-101 Preproposal statement of inquiry (WSR 19-07-015) for permanent rule making were filed on March 8, 2019. Subsequent emergency rule making was filed on July 5 (WSR 19-15-004) and November 1, 2019 (WSR 19-22-041). The CR-102 proposed rules for the permanent rule was filed on January 2, 2020 (WSR 20-02-113). The comment period for the proposed rule ended on February 10, 2020. A renewal of the current emergency rules, which expire on February 29, is needed while the prevailing wage program considers the comments received and finalizes the adoption of the permanent rules.

Reasons for this Finding: 2018's SSB 5493, effective June 7, 2018, revised RCW 39.12.015. Under the new law, the department is directed to "establish the prevailing rate of wage… established in collective bargaining agreements for those trades and occupations that have collective bargaining agreements." Where no collective bargaining agreement (CBA) exists, the department is to conduct wage and hour surveys. Other methods may be used where a survey is not sufficient.

The department implemented SSB 5493 in the prevailing rates published on August 1, 2018. As a result of the new law, the rates for landscape construction (landscape laborer) significantly increased. On February 25, 2019, the department received a petition from the Association of Washington Cities (AWC) to create a separate landscape maintenance scope of work. Due to the increase in costs, cities are deferring or eliminating necessary maintenance to keep public areas safe, including: Preparing parks, athletic fields, trails and other recreational facilities for the spring and summer season; maintenance of critical vegetation on stormwater facilities like retention ponds; and storm related clean-up to remove dangerous debris from public spaces. Lack of adequate maintenance will result in unsafe facilities creating risks to the public and liability concerns for cities. The department has also heard from companies who contract with cities to do landscape maintenance work with concerns that contracts are not being renewed and workers will be laid off as [a] result.

Under WAC 296-127-013 Scope of work descriptions may be issued by the director or designee to determine the applicable prevailing wage and are created using authoritative sources including: Apprenticeship standards; CBAs; dictionaries of occupational titles; experts from organized labor, licensed contractors, and contractors' associations; and recognized labor and management industry practice. Under WAC 296-127-01346, the introductory paragraph of the landscape construction scope of work description is work involved in the beautification of a plot of land by changing its natural features through the addition or modification of lawns, trees, bushes, etc. Upon review of the scope of the work, the department determined that the separate scope for landscape maintenance worker is appropriate. Based on information from the AWC and contractors, the rules meet the criteria for emergency rules as needed for the preservation of public health, safety, or general welfare.

For the purpose of the Washington state public works law, chapter 39.12 RCW, landscape maintenance involves the tending to and maintenance of a previously beautified plot of land.

(1) Landscape maintenance includes:

(a) Mowing, weeding, and maintaining of lawns, yards, gardens, athletic fields, golf courses, parks, trails or other previously landscaped surfaces;

(b) Pruning, trimming, mulching and composting;

(d) Incidental hauling or placing of top soil, plants or other landscaping materials in trucks with only one rear axle;

(e) Reseeding, resodding, replanting, top dressing, aerification, and applying chemicals, fertilizers and soil amendments;

(f) Use of power tools with up to twenty horsepower such as line trimmers, edgers, mowers, leaf and snow blowers;

(g) Rehydroseeding using equipment up to one hundred gallon capacity;

(h) Use of riding mowers up to fifty horsepower;

(i) Irrigation system repair and maintenance on existing systems;

(j) Storm drain and catch pond maintenance, including minor debris removal, and clearing of drain grates.

(2) Landscape maintenance does not include:

(a) Any landscape or nonlandscape construction activity or work, other than incidental maintenance and repairs mentioned in subsection (1) of this section;

(b) Power line clearance tree trimming or clearing;

(d) Tree falling or bucking;

(e) The use of power tools over twenty horsepower except riding mowers;

(f) The use of riding mowers over fifty horsepower;

(g) The use of any other riding equipment, other than riding mowers up to fifty horsepower;

(h) Rehydroseeding using equipment with more than one hundred gallon capacity;

(i) Inspection, service, maintenance or repair of a backflow protection device connected to a potable water system.