Title of Regulation: 18VAC145-30. Regulations Governing Certified Professional Wetland Delineators (amending 18VAC145-30-140).

Statutory Authority: §§ 54.1-201 and 54.1-2203 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 10, 2019.

Effective Date: August 1, 2019.

Agency Contact: Kathleen R. Nosbisch, Executive Director, Board for Professional Soil Scientists, Wetland Professionals, and Geologists, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-8514, FAX (804) 527-4294, or email soilscientist@dpor.virginia.gov.

Basis: Section 54.1-201 of the Code of Virginia grants authority to the board to promulgate regulations " . . . in accordance with the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia) necessary to assure continued competency, to prevent deceptive or misleading practices by practitioners, and to effectively administer the regulatory system administered by the regulatory board."

Purpose: This proposed amendment addresses concerns in the wetland delineation community about the inappropriate use of professional work. The board requested this proposed addition to the standards of practice and conduct to promote transparency and ensure minimum competency in the practice of wetland delineation by certified professionals. Ensuring a professional's work is not used or altered without permission protects the safety of the public.

Rationale for Using Fast-Track Rulemaking Process: The fast-track rulemaking process is being used to amend the board's standards of practice and conduct because the proposed amendment is not expected to be controversial. Members of the regulated community requested the change, and it provides helpful clarification to existing guidelines and prohibitions on representations of professional opinion.

Substance: The board's proposed amendment to 18VAC145-30-140 adds a new prohibited act to make explicit that a Virginia certified professional wetland delineator is prohibited from using the work of another without written consent.

Issues: The primary advantage to the public of adding the proposed amendment is ensuring the integrity of the regulatory program for Virginia certified professional wetland delineators and promoting an ethical marketplace overall by prohibiting certificate holders from using another professional's work without permission. Moreover, businesses engaged in wetland delineation and the individual employees of those businesses will be better protected against improper use of their work. There are no disadvantages to the public or individual private citizens or businesses.

The primary advantage to the Commonwealth is that the regulatory program will be able to take disciplinary action against certificate holders who use the work of another without permission. Not only do such individuals take advantage of other professionals in their field, but such behavior puts the public's health, safety, and welfare at potential risk. There are no identified disadvantages to the agency or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board for Professional Scientists, Wetland Professionals, and Geologists (Board) proposes to clarify that a Virginia certified professional wetland delineator is prohibited from using the work of another without written consent.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The current standards of practice and conduct already prohibit certified wetland delineators from signing work they do not themselves prepare, review, or approve.¹ The Board proposes to make explicit in the regulation that a wetland delineator is prohibited from using the work of another without written consent. The proposed change will allow the Board to take a disciplinary action against certificate holders who use the work of another without permission and strengthen the copyright protections afforded to the owners of original work.

Businesses and Entities Affected. There are 109 individuals certified as wetland delineators.

Localities Particularly Affected. There are no localities particularly affected.

Projected Impact on Employment. No significant impact on employment is expected.

Effects on the Use and Value of Private Property. No significant impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Most, if not all, of the wetland delineators in the private sector are believed to be working for small businesses.

Alternative Method that Minimizes Adverse Impact. No net adverse impact on small businesses is expected.

Adverse Impacts:

Businesses. The proposed amendments do not have an adverse impact on businesses.

Localities. The proposed amendments will not adversely affect localities.

Other Entities. The proposed amendments will not adversely other entities.

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¹See 18VAC145-30-140(3).

Agency's Response to Economic Impact Analysis: The board concurs with the economic impact analysis.

Summary:

The amendments make explicit that a Virginia certified professional wetland delineator is prohibited from using the work of another without written consent. The standards of practice and conduct already prohibit certificate holders from signing work they do not themselves prepare, review, or approve; this amendment clarifies that using the work of another person or organization when rendering services requires written consent.

18VAC145-30-140. Standards of practice and conduct.

A Virginia certified professional wetland delineator:

1. Shall not submit any false statements, make any misrepresentations or fail to disclose any facts requested concerning any application for certification or recertification.

2. Shall not engage in any fraud, deceit, or misrepresentation in advertising, in soliciting or in providing professional services.

3. Shall not knowingly sign any plans, drawings, blueprints, surveys, reports, specifications, maps, or other documents not prepared or reviewed and approved by the certificate holder.

4. Shall not knowingly represent a client or employer on a project on which the certificate holder represents or has represented another client or employer without making full disclosure thereof.

5. Shall express a professional opinion only when it is founded on adequate knowledge of established facts at issue and based on a background of technical competence in the subject matter.

6. Shall not knowingly misrepresent factual information in expressing a professional opinion.

7. Shall immediately notify the client or employer and the appropriate regulatory agency if the certificate holder's professional judgment is overruled and not adhered to when advising appropriate parties of any circumstances of a substantial threat to the public health, safety, or welfare.

8. Shall exercise reasonable care when rendering professional services and shall apply the technical knowledge, skill, and terminology ordinarily applied by practicing wetland professionals.

9. Shall sign and date all plans, drawings, blueprints, surveys, reports, specifications, maps, or other documents prepared or reviewed and approved by the certificate holder. The certified professional wetland professional delineator shall also indicate that he is a Virginia Certified Wetland Professional Delineator certified professional wetland delineator on all plans, drawings, blueprints, surveys, reports, specifications, maps, or other documents prepared or reviewed and approved by the certificate holder and include his certificate number.

10. Shall not utilize the design, drawings, specifications, or work of another regulant to complete or to replicate any work without the written consent of the person who or organization that owns the design, drawings, specifications, or work.