TITLE 9. ENVIRONMENT
STATE WATER CONTROL BOARD
Agency Decision
Title of Regulation: 9VAC25-830. Chesapeake Bay Preservation Area Designation and Management Regulations.
Statutory Authority: §§ 62.1-44.15:69 and 62.1-44.15:72 of the Code of Virginia.
Name of Petitioner: David W. Schnare.
Nature of Petitioner's Request: On March 11, 2024, the Department of Environmental Quality received David W. Schnare's petition to the State Water Control Board. The petitioner requested the board establish by policy or rule a position on:
"1. Whether an Exception Review Committee established under the Chesapeake Bay Preservation Act must only recognize a Resource Protection Area buffer measured from a nontidal wetland in which the geographic extents of the nontidal wetland was determined independent of federal jurisdictional determinations made under the Federal Clean Water Act, or studies intended to support such jurisdictional determinations, and addresses all elements identified in 9VAC25-830-40 and relevant local ordinances; and
2. Whether an applicant for an exception under Fairfax County Ordinance § 118-6-1 can rely on the Atlantic and Gulf Coastal Plain Manual methodologies in order to determine the existence of a nontidal wetland as defined under 33 CFR 328.3 Fairfax County Ordinance § 118-1-6(q), to wit, the presence or absence of a prevalence of vegetation typically adapted for life in saturated soil conditions under normal circumstances; and
3. Requested the board amend 9VAC25-830-40 to read:
"Nontidal wetlands" means those wetlands lands other than tidal wetlands that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions, as defined by the U.S. Environmental Protection Agency pursuant to § 404 of the federal Clean Water Act in 33 CFR 328.3b. whose hydrophytic vegetation indicators, hydric soil indicators, and wetland hydrology indicators reveal the subject land is a wetland as described in the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Eastern Mountains and Piedmont Region (ERDC/EL TR-12-9) or the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Atlantic and Gulf Coastal Plain Region (ERDC/EL TR-10-20) or later versions thereof."
Agency Decision: Request denied.
Statement of Reason for Decision: At the State Water Control Board's June 25, 2024, meeting, the board unanimously voted to deny the petitioner's request for rulemaking. The board's decision was based on the following:
Regarding requests 1 and 2 in the petition, this request is not of a nature for action by the board pursuant to § 2.2-4007 of the Code of Virginia and 9VAC25-11-60 as the request does not relate to establishing or amending a regulation. This request is best addressed through guidance and technical assistance as provided by the Department of Environmental Quality (DEQ).
Regarding request 3 in the petition, this request is of a nature for consideration by the board. However, the requested amended definition of nontidal wetlands in 9VAC25-830-40 would create an improper, inconsistent, and unnecessary revision to the definition.
The proposed definition would be inconsistent with the definition of wetlands under State Water Control Law (§ 62.1-44.2 et seq. of the Code of Virginia). The Code of Virginia provides a specific narrative definition of wetlands that is consistent with the definition provided for in Chesapeake Bay Preservation Area Designation and Management Regulations (9VAC25-830).
Additionally, the proposed definition would be inconsistent with the mirroring narrative definition of nontidal wetlands under Virginia Water Protection Permit Program Regulation (9VAC25-210). Ensuring continuity between these definitions is essential given the interplay of these programs, particularly as 9VAC25-830 and the Bay Act program defer to the 9VAC25-210 requirements, including the technical framework and guidance, for a wetland delineation. Thus, any proper consideration of a revision to definition of nontidal wetlands should not occur within 9VAC25-830.
The United States Supreme Court's Sackett v. Environmental Protection Agency decision did not involve or change Virginia law and under the Clean Water Act did not change the definition of wetlands. In its post-Sackett rulemaking, the Environmental Protection Agency did not change the definition of wetlands. The definition has remained unchanged since the original promulgation in 1986. Thus, Sackett does not compel a regulatory amendment or change the way wetlands are delineated within the Commonwealth including under 9VAC25-830.
Also, while practically, the proposed definition in the petition does include technical considerations for delineating wetlands, such language would potentially create an inappropriate narrowing of the definition of wetlands and such definition includes language and references that are best identified in guidance and technical manuals. The 1987 Manual and accompanying Regional Supplements do provide additional technical guidance for delineation and should be utilized in making such delineation but are not a proper source for determining the legal definition of a nontidal wetland.
Agency Contact: Justin Williams, Department of Environmental Quality, 1111 East Main Street, Suite 1400, P.O. Box 1105, Richmond, VA 23218, telephone (804) 659-1125, or email justin.williams@deq.virginia.gov.
VA.R. Doc. No. PFR24-38; Filed March 19, 2024, 1:24 p.m.
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TITLE 18. PROFESSIONAL AND OCCUPATIONAL LICENSING
BOARD FOR CONTRACTORS
Agency Decision
Title of Regulation: 18VAC50-30. Individual License and Certification Regulations.
Statutory Authority: § 54.1-201 of the Code of Virginia.
Name of Petitioner: Patrick Jeffers.
Nature of Petitioner's Request: The petitioner requests the Department of Professional and Occupational Regulation and the Board for Contractors amend subdivision 11 of 18VAC50-30-190, which provides for prohibited acts.
18VAC50-30-190 states, in part:
"Any of the following are cause for disciplinary action:
11. Where the regulant has been convicted or found guilty, after initial licensure or certification, regardless of adjudication, in any jurisdiction of any felony or of a misdemeanor involving lying, cheating or stealing, sexual offense, non-marijuana drug distribution, physical injury, or relating to the practice of the profession, there being no appeal pending therefrom or the time of appeal having elapsed. Any pleas of guilty or nolo contendere shall be considered a conviction for the purposes of this subdivision. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the jurisdiction where convicted shall be admissible as prima facie evidence of such guilt;"
The petitioner requests that the term "sexual offense" in the prohibited act be stricken.
The petitioner contends that subdivision 11 of 18VAC50-30-190 invites the board to apply § 54.1-204 B of the Code of Virginia in a manner that exceeds the board's police power under §§ 54.1-100 and 54.1-201 A 5 of the Code of Virginia by allowing the board to divest tradesman applicants with certain criminal convictions of their fundamental right to pursue and practice their occupations of choice absent the board's legitimate protective need to prevent them from perpetrating deceptive or misleading trade practices or to ensure their continuing trade competency in contravention of the Constitution of the United States, the Constitution of Virginia, and federal and state statutory and common law.
The petition provides additional legal argument regarding the bases upon which the prohibited act exceeds the board's police power.
A copy of the petition is available from the agency.
Agency Decision: Request denied.
Statement of Reason for Decision: The regulation cited in the petition, 18VAC50-30-190, provides for a prohibited act that applies to regulants who have been convicted of any felony or of certain misdemeanors after receiving a license. Based on a review of the petition, it appears the intention of the petitioner was to address the board's requirement that, pursuant to 18VAC50-30-30, individuals must disclose any felony convictions and any non-marijuana misdemeanor convictions at the time application is made. It further appears the petition addresses the board's legal authority to refuse issuance of a license to applicants for licensure rather than the board's authority to discipline a licensee.
Section 54.1-204 of the Code of Virginia provides that a person shall not be refused a license to practice, pursue, or engage in any regulated occupation or profession solely because of a prior criminal conviction, unless the conviction directly relates to the occupation or profession for which the license is sought.
This section of the Code of Virginia also sets forth criteria the board must consider when determining whether a criminal conviction directly relates to an occupation or profession. These include the nature and seriousness of the crime; the relationship of the crime to the ability, capacity, or fitness required to perform the duties and discharge the responsibilities of the occupation; and the extent to which the occupation or profession might offer an opportunity to engage in further criminal activity of the same type.
The statutes and regulations of the board provide for the protection of the health, safety, and welfare of the public. Removing the provision in the regulation that requires an applicant to disclose any felony convictions and non-marijuana misdemeanor convictions, including sexual offense convictions, does not fulfill the board's obligation to provide these protections. Considering this, along with public comments received in response to the petition, the board denies the petitioner's request.
Agency Contact: Cameron Parris, Regulatory Operations Administrator, Department of Professional and Occupational Regulation, 9960 Mayland Drive, Suite 400, Richmond, VA 23233, telephone (804) 367-9183, or email cameron.parris@dpor.virginia.gov.
VA.R. Doc. No. PFR24-37; Filed March 26, 2024, 8:09 a.m.
BOARD OF LONG-TERM CARE ADMINISTRATORS
Agency Decision
Title of Regulation: 18VAC95-30. Regulations Governing the Practice of Assisted Living Facility Administrators.
Statutory Authority: § 54.1-2400 of the Code of Virginia.
Name of Petitioner: Sandy Rosenblatt.
Nature of Petitioner's Request: The petitioner requests that the Board of Long-Term Care Administrators amend 18VAC95-30-170 B to allow assisted living providers with multiple locations within a 30-minute average one-way distance with a combined capacity of 20 residents to be an eligible training facility for an assisted living facility administrator-in-training program or for an internship.
Agency Decision: Request denied.
Statement of Reason for Decision:
The Board of Long-Term Care Administrators discussed the petition in detail at the June 18, 2024, meeting and decided to take no action on the petition. The board is currently engaging stakeholders through a workgroup on assisted living facilities administrators-in-training training programs and plans to introduce the topic of bed capacity restrictions on training locations at the board's next meeting.
Agency Contact: Corie Tillman Wolf, Executive Director, Board of Long-Term Care Administrators, 9960 Mayland Drive, Suite 300, Henrico, VA 23233-1463, telephone (804) 367-4595, or email corie.wolf@dhp.virginia.gov.
VA.R. Doc. No. PFR24-36; Filed February 20, 2024, 11:25 a.m.
BOARD OF COUNSELING
Initial Agency Notice
Title of Regulation: 18VAC115-20. Regulations Governing the Practice of Professional Counseling.
Statutory Authority: §§ 54.1-2400 and 54.1-3505 of the Code of Virginia.
Name of Petitioner: Tamara Peterson.
Nature of Petitioner's Request: The petitioner requests that the Board of Counseling amend 18VAC115-20-52 D to require supervisors to report the total hours of residency and evaluate an applicant's competency within a set timeframe.
Agency Plan for Disposition of Request: The petition for rulemaking will be published in the Virginia Register of Regulations on July 15, 2024. The petition will also be published on the Virginia Regulatory Town Hall at www.townhall.virginia.gov to receive public comment, which opens July 15, 2024, and closes August 14, 2024. The Board of Counseling will consider the petition and all comments in support or opposition at the next meeting after the close of public comment. That meeting is currently scheduled for October 4, 2024. The petitioner will be notified of the board's decision after that meeting.
Public Comment Deadline: August 14, 2024.
Agency Contact: Jaime Hoyle, Executive Director, Board of Counseling, 9960 Mayland Drive, Suite 300, Henrico, VA 23233, telephone (804) 367-4406, or email jaime.hoyle@dhp.virginia.gov.
VA.R. Doc. No. PFR24-35; Filed June 18, 2024, 9:54 a.m.