TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING

BOARD FOR PROFESSIONAL SOIL SCIENTISTS, WETLAND PROFESSIONALS, AND GEOLOGISTS

Proposed Regulation

Title of Regulation: 18VAC145-30. Regulations Governing Certified Professional Wetland Delineators (amending 18VAC145-30-10 through 18VAC145-30-70, 18VAC145-30-120, 18VAC145-30-140, 18VAC145-30-160; repealing 18VAC145-30-80).

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

Public Hearing Information:

January 22, 2025 - 10 a.m. - Department of Professional and Occupational Regulation, Training Room 1, 9960 Mayland Drive, Richmond, VA 23233.

Public Comment Deadline: February 28, 2025.

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 authorizes the board to promulgate regulations necessary to ensure continued competency and to effectively administer the regulatory system administered by the board.

Purpose: As mandated by the General Assembly, the board protects the public welfare, in part, by establishing through regulation (i) the minimum qualifications of applicants for certification or licensure, provided that all qualifications are necessary to ensure either competence or integrity to engage in the profession or occupation; (ii) minimum standards to ensure continued competency and to prevent deceptive or misleading practices by practitioners; and (iii) requirements to effectively administer the regulatory system administered by the board.

As the proposed regulation was developed, the board reviewed discretionary requirements imposed on regulated parties and eliminated those requirements that are not necessary to protect the public health, safety, and welfare or to effectively administer the certification program.

Substance: The proposed amendments include:

1. Revising the definitions of "tidal wetlands" and "nontidal wetlands" in 18VAC145-30-10 to update and clarify the meaning of these terms.

2. Revising the provisions of 18VAC145-30-20 to specify that an applicant must pass the board-approved examination and to provide that the board will waive the examination requirement for those who meet the requirements of applicable statute.

3. Revising the provisions of 18VAC145-30-40 to (i) remove education and experience provisions that are currently provided for in statute and (ii) change provisions related to the submission of letters of reference for certification.

4. Revising the qualifying experience provisions in 18VAC145-30-50 to increase the minimum number of nontidal wetland delineations that an applicant must have inspected, reviewed, or confirmed if seeking to qualify based on experience in inspecting, reviewing, and confirming delineations.

5. Revising the qualifying education provisions in 18VAC145-30-60 to (i) provide that acceptable education may include a graduate degree and (ii) remove the minimum number of required semester hours in biology, physical, and quantitative sciences as criteria for acceptable degree coursework.

6. Revising the provisions of 18VAC145-30-70 to remove the requirement that an application for certification be received by the board at least 90 days prior to the certification examination.

7. Repealing the examination waiver provisions in 18VAC145-30-80, which are not necessary.

8. Revising the provisions of 18VAC145-30-120 to (i) increase the timeframe for reinstatement of an expired certificate from one year to two years and (ii) remove a provision that the board may require examination or reexamination of an individual who is reinstating a certificate.

9. Revising the standards of practice and conduct in 18VAC145-30-140 to remove standards that are not necessary to protect the public health, safety, and welfare.

Issues: The primary advantages to the public and regulated community include providing clarification to provisions of the regulation, ensuring the regulation complements Virginia law and reflects current agency procedures, and reducing regulatory burdens by removing requirements that are not necessary to protect the health, safety, and welfare of the public. There are no identifiable disadvantages to the public or the Commonwealth. The board does not anticipate that the regulatory change will create any substantial disadvantages to the regulated community.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.¹

Summary of the Proposed Amendments to Regulation. The Board for Professional Soil Scientists, Wetland Professionals, and Geologists (board) proposes to (i) revise the qualifying education for certification to include a graduate degree and remove the minimum number of required semester hours for certain coursework; (ii) increase the timeframe for reinstating an expired certificate from one year to two years and remove a provision that the board may require examination or reexamination of an individual who is reinstating a certificate; and (iii) make the experience requirement more stringent for those seeking to qualify for certification based on inspection, review, or confirmation of wetland delineations.

Background. The initial impetus for this action was Executive Directive Number One (2022), which directs Executive Branch entities under the authority of the Governor to initiate regulatory processes to reduce by at least 25% the number of regulations not mandated by federal or state statute, in consultation with the Office of the Attorney General, and in a manner consistent with the laws of the Commonwealth. This regulation establishes rules for individuals who practice or offer to practice as a wetland professional by providing that such individuals may voluntarily obtain certification from the board as a certified professional wetland delineator as evidence of qualification to engage in this occupation. Individuals that meet the requirements of certification are authorized to represent themselves to the public as certified professional wetland delineators. However, a lack of certification does not prohibit the practice of wetland delineation. The regulation ensures that individuals who are certified have met the minimum standards (including education, experience, and examination) that have been established by the General Assembly and the board to practice wetland delineation. In order to comply with Executive Directive Number One, the board primarily proposes changes that would repeal language that is duplicative of statute, is non-regulatory in nature, or contradicts current practice. Two other proposed changes aim to reduce regulatory burdens, and one proposed change would increase the stringency of the experience requirement for certification.

Estimated Benefits and Costs. As of July 1, 2024, there were 130 certified wetland delineators, and one to eight new applicants were certified annually between fiscal years 2020 and 2024. The number of entrants is relatively small compared to some of the other regulated occupations, and thus the magnitude of the expected impacts discussed below should be relatively limited. The board proposes to revise the qualifying education for certification to allow an applicant to have either a graduate degree or the currently required bachelor's degree and to remove the minimum number of required semester hours in biological, physical, and quantitative sciences. Under the proposed changes, an applicant could qualify if they possess either an undergraduate or graduate degree so long as it contains coursework in biological, physical, and quantitative sciences. With these two proposed changes, the board reports that more individuals would likely qualify for certification as the change would include those whose graduate degree is in biology, physical, and quantitative sciences even if their bachelor's degree lacks sufficient focus in those areas. The board also proposes to increase the timeframe for reinstating an expired certificate from one year to two years, and to remove a provision that the board may require examination or reexamination of an individual who is reinstating a certificate. These changes would allow more time to reinstate an expired certificate and eliminate the possibility of having to retake the exam. On the other hand, the board also proposes to make the experience requirement more stringent for those seeking to qualify based on inspection, review, or confirmation of delineations as an employee of a federal, state, or local governmental body that is authorized to review or approve such delineations. This would be made more stringent by increasing the minimum number of nontidal wetland delineations that an applicant must have inspected, reviewed, or confirmed from six out of 30 total delineations to 18 out of 30. In other words, under the proposal, 60% (i.e., 18 out of 30) of the required delineations must be for nontidal wetlands as opposed to the current 20% (i.e., six out of 30). This proposal results from board determination that the current requirement for experience in delineation of nontidal wetlands does not provide sufficient demonstration of competency. More specifically, individuals attempting to qualify based on experience on preparing (as opposed to inspection, review, or confirmation) delineations are required to have 60% of their experience based on delineations of nontidal wetlands. The proposal would bring the portion of nontidal wetland delineation experience gained from inspection, review, or confirmation to the same level expected from preparing delineations. According to the board, nontidal wetland delineations are generally more complicated and take longer to inspect, review, or confirm. Thus, the board believes this proposed change would increase the stringency of the experience requirement for those who are seeking to qualify based on inspection, review, or confirmation of delineations as an employee of a federal, state, or local governmental body that is authorized to review or approve such delineations. The remaining proposed changes are not expected to create any economic effects other than editorial improvements and clarity as they comprise the repeal of regulatory text that is redundant of statutory language, text that does not reflect current practices, or text that is not regulatory in nature.

Businesses and Other Entities Affected. As of July 1, 2024, there were 130 certified wetland delineators in Virginia and between one to eight new applicants were certified annually between fiscal years 2020 and 2024. No regulants appear to be disproportionately affected. The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.² An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.³ One of the proposals would increase the stringency of the experience requirement based on the inspection, review, or confirmation of delineations and would likely require more time and effort from such individuals to qualify for certification. Thus, an adverse impact is indicated.

Small Businesses⁴ Affected.⁵ The proposed amendments do not appear to directly adversely affect small businesses because certifications are issued to individuals, not to business entities. However, the board states that many certified wetland delineators are likely to be owners or employees of business entities that meet the definition of "small business" in § 2.2-4007.1 of the Code of Virginia.

Localities⁶ Affected.⁷ The proposed amendments do not introduce costs for local governments, nor do they disproportionately affect any locality more than others.

Projected Impact on Employment. One of the proposed changes may impose more time and effort for certification of those that qualify based on inspection, review, or confirmation experience. The new requirement to include a graduate degree as an option, combined with the removal of specific hours for certain coursework requirements, may increase the number of qualified applicants. However, the proposed changes do not appear to have the potential to significantly affect total employment because relatively few certifications are issued annually.

Effects on the Use and Value of Private Property. The potential net impact on asset values of wetland delineation businesses is unclear, but unlikely to be significant as two of the proposed changes are less stringent and may reduce compliance costs by small amount for a small number of applicants and one of the proposed changes is more stringent and may increase compliance costs also by a small amount for a small number of applicants. No direct impact on real estate development costs is expected.

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¹ Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

² Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

³ Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

⁴ Pursuant to § 2.2-4007.04, 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."

⁵ If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

⁶ "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

⁷ Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency Response to Economic Impact Analysis: The Board for Professional Soil Scientists, Wetland Professionals, and Geologists concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

Pursuant to Executive Directive One (2022) and Executive Order 19 (2022), the proposed amendments (i) revise definitions; (ii) revise the qualifying education for certification to include a graduate degree and remove the minimum number of required semester hours for certain coursework; (iii) increase the timeframe for reinstating an expired certificate to two years and remove a provision that the board may require examination or reexamination of an individual who is reinstating a certificate; and (iv) make the experience requirement more stringent for those seeking to qualify for certification based on inspection, review, or confirmation of wetland delineations.

18VAC145-30-10. Definitions.

All terms defined in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia are incorporated in this chapter.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Tidal wetlands" means those wetlands defined by subject to the jurisdiction of Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia.

"Nontidal wetlands" means all other wetlands, as that term is defined in § 62.1-44.3 of the Code of Virginia, except those defined by subject to the jurisdiction of Chapter 13 (§ 28.2-1300 et seq.) of Title 28.2 of the Code of Virginia.

18VAC145-30-20. Qualifications for certification.

Applicants for certification shall pass the board-approved exam and meet the requirements specified in Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia, as amended, and this chapter. The board will waive the examination requirement for applicants who meet the requirements of § 54.1-2206 B of the Code of Virginia.

18VAC145-30-30. Receipt of application.

The date the completely documented completed application and fee are received in the board's office shall determine if the application has been received by the established deadline.

18VAC145-30-40. Qualification for examination.

A. In order to qualify for the examination, an applicant shall provide (i) documentation of meeting education and experience requirements and (ii) three written references that comply with subsection B of this section and satisfy one of the following criteria: as provided for in § 54.1-2206.2 of the Code of Virginia.

1. Hold a bachelor's degree from an accredited institution of higher education in a wetland science, biology, biological engineering, civil and environmental engineering, ecology, soil science, geology, hydrology, or any similar biological, physical, natural science, or environmental engineering curriculum that has been approved by the board; have successfully completed a course of instruction in state and federal wetland delineation methods that has been approved by the board; and have at least three years of experience in wetland delineation, which meets the requirements of subdivision 1 or 2 of 18VAC145-30-50, the quality of which demonstrates to the board that the applicant is competent to practice as a certified professional wetland delineator;

2. Have a record of at least six years of experience in wetland delineation, which meets the requirements of subdivision 1 or 2 of 18VAC145-30-50, the quality of which demonstrates to the board that the applicant is competent to practice as a certified professional wetland delineator; or

3. Have a record of at least three years of experience in wetland science research or as a teacher of wetlands curriculum in an accredited institution of higher education, which meets the requirements of subdivision 3 of 18VAC145-30-50, and the quality of which demonstrates to the board that the applicant is competent to practice as a certified professional wetland delineator.

B. Every applicant shall provide three written references, on a form provided by the board, from wetland professionals with at least one from a certified professional wetland delineator. Individuals who provide references References shall not be related to the applicant and shall have known the applicant for at least one year. Individuals who provide references may not also verify experience, including research or teaching experience.

18VAC145-30-50. Qualifying experience in wetland delineation.

An applicant shall demonstrate experience in one of the following areas:

1. For those individuals applying seeking to qualify pursuant to the provisions of 18VAC145-30-40 A 1 or A 2 subdivision 1 or 2 of § 54.1-2206.2 of the Code of Virginia, the experience in wetland delineation must be as a wetland professional and include the preparation of no less fewer than 10 delineations, which must be no more than 10 years old at the time of receipt by the board office, delineating wetlands in accordance with applicable state and federal regulations that include the proper identification of vegetation, soil, and hydrology indicators. At least six of the 10 delineations must be for nontidal wetlands;

2. For those individuals applying seeking to qualify pursuant to the provisions of 18VAC145-30-40 A 1 or A 2 subdivision 1 or 2 of § 54.1-2206.2 of the Code of Virginia, the experience in wetland delineation must be as a wetland professional and include the inspection, review, or confirmation of no less fewer than 30 delineations as an employee of a federal, state, or local governmental body that is authorized to review or approve such delineations, which must be no more than 10 years old at the time of receipt by the board office, delineating wetlands in accordance with applicable state and federal regulations that include the proper identification of vegetation, soil, and hydrology indicators. Such experience must include the performance of field verifications of a portion of those wetland delineations that were inspected, reviewed, or confirmed. At least six 18 of the 30 delineations must be for nontidal wetlands; or

3. For those individuals applying seeking to qualify pursuant to the provisions of 18VAC145-30-40 A 3 subdivision 3 of § 54.1-2206.2 of the Code of Virginia, the experience as a wetland science researcher must include the preparation of a minimum of three field studies focused on wetland delineation practice and issues, which includes the proper identification of vegetation, soil, and hydrology indicators, and the experience as a teacher of wetlands curriculum must have been acquired in an accredited institution of higher education as a field or laboratory instructor of quarter quarter-length or semester length semester-length classes for a minimum of six semester hours, or equivalent, within the past 10 years prior to the receipt of the application by the board office, and the curriculum must have included the proper identification of vegetation, soil, and hydrology indicators.

18VAC145-30-60. Course requirements.

The education required pursuant to 18VAC145-30-40 A 1 subdivision 1 of § 54.1-2206.2 of the Code of Virginia must include the following:

1. For a bachelors bachelor's or graduate degree in any similar biological, physical, natural science or environmental engineering curriculum to be approved by the board, it shall, at a minimum, contain coursework in the following:

a. Fifteen semester hours, or equivalent, in biological Biological sciences, including courses such as general biology, botany, or zoology; general ecology; plant, animal, aquatic, or wetlands ecology; invertebrate zoology; taxonomy; marine science; fisheries biology; plant physiology, plant taxonomy, plant pathology, or plant morphology; relevant environmental sciences,; and similar courses;

b. Fifteen semester hours, or equivalent, in physical Physical sciences, including courses in soils, chemistry, hydrology, physics, geology, sedimentology, oceanography, coastal processes, environmental engineering, and similar courses; and

c. Six semester hours, or equivalent, in quantitative Quantitative sciences, including courses in math, computer sciences, basic statistics, population dynamics, experimental statistics, and similar courses.

2. The applicant must have successfully completed a course of instruction, of a minimum of 32 hours, in state and federal wetland delineation methods that includes the proper identification of vegetation, soil, and hydrology indicators and a field component.

18VAC145-30-70. Examination.

A. Once approved by the board, an applicant shall be eligible to sit for a board-approved examination.

B. An applicant must meet all eligibility requirements as of the date the completely documented completed application and fee is received by the board's office. For examination candidates, the completely documented application and fee must be received by the board's office at least 90 days prior to the examination.

C. A candidate approved to take an examination shall do so within one year of the date of approval or submit a new application and fee in accordance with these regulations this chapter. If an applicant should not Applicants who fail to pass the board-approved examination within one year of being approved, the applicant shall be required to submit a new application and fee in accordance with this chapter in order to take the examination.

D. A candidate who is unable to take the examination at the time scheduled must notify the department in writing prior to the date of the examination; such a candidate and will be rescheduled for the next examination without an additional fee. Failure to so notify the department will result in forfeiture of the examination or reexamination fee.

E. Candidates will be notified of passing or failing the examination.

18VAC145-30-80. Waiver from examination. (Repealed.)

An applicant shall be granted a Virginia certificate without examination, provided that:

1. The applicant holds an unexpired professional wetland delineator certificate or equivalent issued on the basis of equivalent requirements for certification in Virginia, by a regulatory body of another state, territory or possession of the United States or has been provisionally certified under the U.S. Army Corps of Engineers Wetland Delineator Certification Program of 1993 and is not, nor has been, the subject of any disciplinary proceeding before such regulatory body, and such other regulatory body recognizes the certificates issued by this board, provided all other requirements of Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia and this chapter are satisfied; or

2. Applicants who submit a complete application so that it is received by the board on or before June 30, 2006, and are found to be qualified pursuant to § 54.1-2206 B of the Code of Virginia (effective July 1, 2004), provided all other requirements of Chapter 22 (§ 54.1-2200 et seq.) of Title 54.1 of the Code of Virginia and this chapter are satisfied.

18VAC145-30-120. Reinstatement.

A. If the renewal fee and late renewal fee are not received by the department within 180 days following the expiration date noted on the certificate, the certificate holder shall no longer be considered a certificate holder and will be required to apply for certificate reinstatement. The applicant shall meet the current eligibility standards for certification as a Virginia certified professional wetland delineator. The board may require examination or reexamination. The fee for reinstatement shall include the regular renewal fee plus the reinstatement fee.

B. If the reinstatement application and fee are not received by the department within one year two years following the expiration date noted on the certificate, the applicant shall apply as a new applicant and shall meet all current entry requirements as may be required by the board.

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 the professional opinion 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. 7. 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 delineator shall also indicate that he is a Virginia 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. 8. 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.

18VAC145-30-160. Change of address.

A certificate holder shall keep the department informed of his the certificate holder's current mailing address. Change of address shall be reported to the department in writing within 30 calendar days of the change.