Title of Regulation: 18VAC145-30. Regulations Governing Certified Professional Wetland Delineators (amending 18VAC145-30-40).

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

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: February 11, 2015.

Effective Date: March 1, 2015.

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 assure continued competency and to effectively administer the regulatory system administered by the board. Section 54.1-2206.2 of the Code of Virginia addresses the requirements for professional wetland delineator certification and was amended per Chapter 546 of the 2013 Acts of Assembly.

Purpose: This action removes the requirement that experience be gained under a certified professional wetland delineator and conforms the regulation to state law. Because only 110 certified professional wetland delineators in the Commonwealth could act as supervisors, the amendment removes a burden to certification. This action also removes the waiver of the requirement for a reference from a certified professional wetland delineator as the waiver expired on July 13, 2010. This action should not affect the public health, safety, or welfare.

Rationale for Using Fast-Track Process: The board does not expect this action to be controversial as it removes a requirement for certification that was a burden to certification because only 110 certified professional wetland delineators are in the Commonwealth, and it removes an obsolete provision.

Substance: Removing the requirement that experience be gained under a certified professional wetland delineator makes it easier for applicants to meet the four-year experience requirement.

Issues: There are no disadvantages to private citizens, businesses, or the Commonwealth. There is an advantage to those seeking certification as a professional wetland delineator because it will ease the burden of gaining experience under one of the 110 certified professional wetland delineators in the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. Pursuant to Chapter 546 of the 2013 Acts of the Assembly, the Board for Professional Soil Scientists, Wetland Professionals, and Geologists (Board) proposes to amend its regulation governing the certification of wetland delineators so that individuals who are applying to take the certification examination will not have had to gain required experience under the supervision of a certified professional wetland delineator.

Result of Analysis. Benefits likely exceed costs for all proposed regulatory changes.

Estimated Economic Impact. Currently both the Code of Virginia and regulation require that individuals who wish to be certified professional wetland delineators pass a certification exam and either:

1) Hold a bachelors degree in certain specified fields, complete a course in state and federal wetland delineation methods and have at least four years of experience in wetland delineation under the supervision of an already certified professional wetland delineator,

2) Have a record of at least six years of experience in wetland delineation under the supervision of an already certified professional wetland delineator, or

3) Have a record of at least four years of experience in wetland science research or as a teacher of a wetlands curriculum at a college level.

In 2013, the General Assembly passed legislation that eliminated supervision requirements for the experience that must be shown in order to qualify for certification as a professional wetland delineator. Board staff reports that the General Assembly took this action because there are too few certified wetland delineators in the Commonwealth to provide enough supervisory capacity for a robust regulatory program. The Board now proposes to amend these regulations so that they comport with Chapter 546.

Individuals who wish to work as wetland delineators will benefit from this change as they will be able to count experience toward certification requirements that they would not have been able to before the law change. This may allow them to become certified more quickly and less expensively. The public will also benefit from this change as lengthy apprenticeship requirements in an environment where there are so few certified individuals likely helps create an artificial scarcity in wetland services which would tend to drive up prices for such services. Eliminating the supervision requirement will mitigate but not eliminate this artificial scarcity and may lead to lower costs for these services. Some currently certified wetland delineators will likely experience decreased profits because the state will no longer be imposing a requirement that likely allows them to hire individuals who aspire to certification at lower wages than they otherwise would have to pay. The benefits for individuals seeking certification as well as for the public, however, likely outweigh these costs.

Businesses and Entities Affected. The Department of Professional and Occupational Regulation (DPOR) reports that, currently, fewer than six individuals per year apply for certification as wetland delineators; DPOR further reports that there are currently 110 certified professional wetland delineators practicing in the Commonwealth.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This proposed regulatory change, and the Code of Virginia change that drives it, will likely increase the supply of individuals who work as certified professional wetland delineators in the Commonwealth. If this increase in supply drives down the average cost of obtaining the services of certified wetland delineators, the quantity demanded for these services may increase.

Effects on the Use and Value of Private Property. This proposed regulatory change, and the Code of Virginia change that drives it, will likely increase the supply of individuals who work as certified professional wetland delineators in the Commonwealth. If this increase in supply drives down the average cost of obtaining the services of certified wetland delineators, the cost of developing private property that includes wetlands will likely decrease and the value of that property will likely increase.

Small Businesses: Costs and Other Effects. No small business in the Commonwealth is likely to incur costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. No small business in the Commonwealth is likely to incur costs on account of this regulatory action.

Real Estate Development Costs. This proposed regulatory change, and the Code of Virginia change that drives it, will likely increase the supply of individuals who work as certified professional wetland delineators in the Commonwealth. If this increase in supply drives down the average cost of obtaining the services of certified wetland delineators, the cost of developing property that included wetlands will likely decrease.

Legal Mandate.

General: 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 Number 14 (2010). Section 2.2-4007.04 requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the report should include but not be limited to:

• the projected number of businesses or other entities to whom the proposed regulation would apply,

• the identity of any localities and types of businesses or other entities particularly affected,

• the projected number of persons and employment positions to be affected,

• the projected costs to affected businesses or entities to implement or comply with the regulation, and

• the impact on the use and value of private property.

Small Businesses: If the proposed regulation will have an adverse effect on small businesses, 2.2-4007.04 requires that such economic impact analyses include:

• an identification and estimate of the number of small businesses subject to the proposed regulation,

• 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,

• a statement of the probable effect of the proposed regulation on affected small businesses, and

• 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, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules (JCAR) is notified at the time the proposed regulation is submitted to the Virginia Register of Regulations for publication. This analysis shall represent DPB's best estimate for the purposes of public review and comment on the proposed regulation.

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

Summary:

The amendments delete (i) the requirement that experience be gained under a certified professional wetland delineator prior to certification pursuant to Chapter 546 of the 2013 Acts of Assembly and (ii) the obsolete waiver of the requirement for a reference from a certified professional wetland delineator.

18VAC145-30-40. Qualification for examination.

A. In order to qualify for the examination, an applicant shall provide three written references that comply with subsection B of this section and satisfy one of the following criteria:

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 four years of experience in wetland delineation, which meets the requirements of subdivision 1 or 2 of 18VAC145-30-50, under the supervision of a certified professional wetland delineator, 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, under the supervision of a certified professional wetland delineator, 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 four 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 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.

C. Notwithstanding the requirements of subsections A and B of this section, the requirement for a reference from and supervision by a certified professional wetland delineator shall be waived provided a complete application is received by the board on or before July 13, 2010.

FORMS (18VAC145-30)

Professional Wetland Delineator Certification Application, 3402CERT (rev. 9/10).

Professional Wetland Delineator Experience Log, 3402EXP (rev. 9/10).

Professional Wetland Delineator Reference Form, 3402REF (rev. 9/10).

Professional Wetland Delineator Certification Application, A439-3402CERT-v1 (rev. 9/13)

Professional Wetland Delineator Experience Log, A439-3402EXP-v2 (rev. 3/15)

Professional Wetland Delineator Reference Form, A439-3402REF-v1 (rev. 9/13)