I am providing the following comments as a certified Virginia Professional Wetland Delineator, a Board member and past president of the Virginia Association of Wetland Professionals, a Society of Wetland Scientists Professional Wetland Scientists, a graduate of the Chistopher Newport University were I obtained a Master’s Degree in Environmental Science with a focus on Virginia wetlands, and as an active wetland professional in Virginia operating in a management role for an environmental consulting  woman owned, small business (certified SWaM) headquartered in Richmond, Virginia.

The Board for Professional Soil Scientists, Wetland Professionals, and Geologists (Board) intends to consider amending 18VAC145-30, Regulations Governing Certified Professional Wetland Delineators. A Notice of Intended Regulatory Action has been published in the Virginia Register of Regulations in VOL. 40 ISS. 5 (OCTOBER 23, 2023) with a comment extension provided in VOL. 40 ISS. 8 (DECEMBER 04, 2023). Per the Notice of Intended Regulatory Action (NOIRA) Agency Background Document published on Virginia TownHall dated 8/22/2023 (modified 9/26/2023).

During its review of the regulations, the Board is expected to consider several changes to the regulations. The Board has developed a preliminary draft text which outlines changes contemplated. I have outlined these contemplated changes and provide the following comments:

PART I – GENERAL (18VAC145-30-10):

• Definitions – Revising the definitions of “tidal wetlands” and “nontidal wetlands” to update the meaning of these terms.

• I support the proposed draft text under this section. The proposed revisions provide clarify and regulatory consistency.

PART II – ENTRY (18VAC145-30-20 et seq.):

• Qualifications for Certification (18VAC145-30-20): Revising the section to clarify that an applicant for certification must pass a Board-approved examination.

• I support the proposed draft text under this section. The proposed revisions provide clarify and regulatory consistency.

• Qualification for Examination (18VAC145-30-40): Removing provisions that restate education and experience criteria for certification provided for in § 54.1-2206.2 of the Code of Virginia.

• I strongly disagree with the removal of these provisions. The NOIRA Agency Background Document states that the preliminary draft text contemplates changes to the Code of Virginia. It is my understanding, and the understanding of many in the PWD community, that the recently passed Universal License Recognition (ULR) legislation mandates that the number of years of experience that an applicant must show to demonstrate their experience be 3 years, while the current PWD certification requires 4 years of experience. It appears that the Board is contemplating removing the education and experience criteria from the DPOR regulations changes in anticipation of the ULR legislation that may occur. I strongly disagree that 3 years of experience is sufficient to demonstrate a PWD’s competency, but since we are required to be consistent with the ULR legislation’s number of years of experience, I see no recourse other than to change the number of years’ experience required for the PWD certification to lower it from 4 years to 3 years.   f implementation of a maximum of three-year experiential criteria required, an alternative the Board should consider is the incorporation of a field practicum into the CPWD certification requirements, to appropriate assess the capabilities of applicants that would serve in place of the experiential criteria. Incorporating a field practicum as part of the CPWD exam may be the most viable option to maintain the integrity of the certification in light of the Universal License Recognition legislation. The Virginia Code (§ 54.1-2206.2) contemplates and allows for a field practicum to be incorporated part of the PWD certification examination, therefore, it should be within the Board’s authority to consider incorporation of a field practicum into DPOR’s regulations.  Objections to administration a field practicum (such as cost, test locations, field proctors, etc.) can be overcome, as is evidenced other such field practicum programs, such as the New Hampshire Certified Wetland Scientist which incorporates both a written and field examination as part of their certification programs. I request the Board contemplate incorporating a field exam/practicum as part of the certification if experiential level must be cut due to other regulations and request an Advisory Panel of professionals and academics be established to develop a framework for the field practicum.
• At a minimum, I’d suggest 18VAC145-30-40 reference the education and experience criteria at § 54.1-2206.2 to clarify that these education and experience criteria are required prior to examination, rather than deleting the entire section from the DPOR regulations.

• Qualification for Examination (18VAC145-30-40): Removing provisions that one of the three written references be from a certified professional wetland delineator.

• This proposed change is outlined in the preliminary draft text, but was not noted in the NOIRA Agency Background Document ‘Substance’ section. I strongly oppose the removal of this provision. The existing supervision/references requirements, including references by current CPWDs, were put in place as they are essential to ensure high-quality delineations with proper application of criteria in determining wetland jurisdictional boundaries.  The PWD program provides the public needing delineation services with qualified professionals, helping to reduce the risk and harms which can be caused by improper delineation work. Reducing the refence requirements for CPWDs could negatively impact the quality of delineations and ultimately, wetland permits, compensatory mitigation, accurate/true engineering plans, and site development in the Commonwealth.  Virginia has a unique wetland systems with specific regulatory requirements.  Having a CPWD as a reference helps to ensue that applicants have been trained/mentored by someone with demonstrated experience in the nuances of Virginia wetlands.  

• Qualifying Experience in Wetland Delineation (18VAC145-30-50): Revising provisions regarding acceptable qualifying experience for certification. Increasing the minimum requirement for delineations of nontidal wetlands.

• I support the proposed draft text under this section. The proposed revisions provide clarify and regulatory consistency. Increasing the minimum requirement for delineations of nontidal wetlands by individuals seeking to qualify pursuant to subdivision 3 of § 54.1-2206.2 from 6 to 18 (of the 30 delineation) is beneficial to demonstrate adequate experience, as tidal delineations are largely based on elevations and many not require the same skills set/basis of knowledge as non-tidal delineations.

• Course Requirements (18VAC145-30-60): Revising provisions for minimum education to:

o Remove the requirement for a minimum number of semester hours in biological, physical, and quantitative sciences;

• I strongly disagree with these proposed changes. As stated by others in this public forum, the interdisciplinary nature of the practice requires that delineators be proficient in multiple domains of science, for example, ecology, hydrologic processes, botany, soil science and geology, and atmospheric sciences.  One would be hard-pressed to find another profession within the DPOR certification portfolio that engages so many different disciplines toward a common occupational objective.  When viewed through the lens of wetland delineation practice, exercising these overlapping proficiencies becomes an extremely nuanced enterprise because the conditions change from site to site.  The minimum credit hours within the current regulations are necessary to ensure that applicants have the educational background required to appropriately analysis and synthesis data required in a wetland delineation. The interdisciplinary nature of wetland delineation demands that practitioners develop proficiency in several different fields.  While it is unrealistic to expect a PWD applicant to hold degrees in each one of these disciplines, having a degree in at least one related field ensures that an applicant has engaged in a course of study that sets a pedagogical foundation for the acquisition of new knowledge.  In other words, a qualified wetland delineator has to know how to learn, and the PWD certification program has no other way to evaluate this aspect of an applicant’s background than the current education requirement.  As with the experience requirement, removing these education requirements (specific degrees, minimum semester hours, etc.) will weaken the program.

o Provide that a bachelor's degree or graduate degree that contains coursework in biological, physical, and quantitative sciences is acceptable; and

• I support the proposed draft text under this section. Coursework at the bachelor or graduate degree levels should both be sufficient at providing adequate educational experiences.

o Remove the requirement for an applicant to take a minimum 32-hour course in state and federal wetland delineation methods. The Board is considering repeal of completion of a course of at least 32 hours in state and federal wetland delineation methods. The Board has also requested this requirement be repealed in statute. This change requires a statutory change that has been requested. If the statute is modified, the Board will proceed with the change. If it is not modified by the deadline to file proposed language, the revision will be pulled from the proposed regulation.

• I strongly oppose the removal of the 32-hour course in wetland delineation methods. I reiterate Dr. Doug Deberry’s comment: The current 32-hour professional development course requirement serves an important function in that it ensures that a PWD applicant has had at least one structured experience where all facets of the practice have been synthesized.  In my experience, this serves to galvanize wetland delineators to continue sharpening their skills and, at a minimum, it bears witness to the fact that applicants have been exposed to a delineation-specific curriculum.  This requirement should remain in the regulations.

• Examination (18VAC145-30-70): Removing provisions that require an applicant to submit a completed application and payment of application fee at least 90 days prior to the examination for certification.

-              I do not oppose the proposed draft text under this section.

• Waiver from Examination (18VAC145-30-80): – Repealing this section which restates an examination waiver provided for in § 54.1-2206 of the Code of Virginia, and which outlines a “grandfathering” provision that is no longer applicable.

-              I do not oppose the proposed draft text under this section.

Part IV – STANDARDS OF PRACTICE AND CONDUCT (18VAC145-30-140):

• Removing a requirement that a certificate holder provide notification to an employer or client when the certificate holder’s professional judgement is overruled.

• I strongly oppose the removal of the standard of conduct that PWDs notify employers or clients when their judgement is overruled. Removing this provision can significantly harm applicant/developers and the Commonwealth. Individuals who employ CPWD should expect to receive the true evaluation of a property. If there are differences in options or if a CPWD is overrule by a less experienced supervisor, the property owner could be given misleading/incorrect information.  CPWDs should be required to notify invested parties in such situations to ensure the integrity of the certification.

• Removing a requirement that a certificate holder sign and date all plans, drawing, blueprints, surveys, reports, and other documents prepared, reviewed, or approved by the certificate holder. Removing a requirement that a certificate holder indicate on such documents that the documents were prepared, reviewed, or approved by the certificate holder and include the certificate holder’s number

• I oppose the removal of this provision.

Additional comments:

The existing education, training, and supervision/references requirements were put in place to ensure high quality delineations with proper application of criteria in determining wetland jurisdictional boundaries. Prior to the PWD certification, there were occurrences of delineations being performed in Virginia by unqualified individuals, resulting in permitting issues and lawsuits against both the regulatory authorities and the individuals performing substandard work. The PWD program provides the public needing delineation services with a pool of qualified professionals, helping to reduce the risk and harms which can be caused by improper delineation work. Reducing the certification requirements for CPWDs could negatively impact the quality of delineations and ultimately, wetland permits, compensatory mitigation, accurate/true engineering plans, and site development in the Commonwealth as a whole. The current educational, training, and experiential components of the CPWD regulation are critical to assuring reliable and consistent identification of State Surface Waters. There are many wetland professionals that are small businesses employees and/or owners. Costs and burdens associated with litigations resulting from wetland delineation work performed by unqualified individuals can result in harm to these small business. Possibly worse, an inaccurate delineation or poor understanding of Virginia regulations can not only be costly to the permittee, it increases the onus of regulators with limited staff and time increasing permit issuance backlogs.  Therefore, maintaining the integrity of the CPWD regulations is essential.

With recent changes to wetland regulation by the federal government, the Virginia DEQ must now step in and assert its jurisdiction of Surface Waters of the State.  Because the DEQ does not have the staff or budget to perform jurisdictional determinations in the field, the permitting of projects in Virginia was going to be very negatively impacted.  To allow permitting to proceed without unnecessary delays, the DEQ instituted a new State Surface Waters Delineator certification that requires that an individual obtain the PWD certification and have taken and passed a stream identification class.  Individuals who have obtained both are granted the new DEQ certification and delineations led or performed by those VSWD’s are assured 30-day review under the States PEEP system.  Delineation work performed by non-certified individuals will receive no assurances of timely permitting review.  The VSWD certification was based on the current knowledge, skills, and abilities that PWDs must possess.  If the PWD certification requirements are watered down significantly as proposed in the NOIRA, then it could jeopardize the VSWD certification, and permitting timelines in Virginia could be seriously impacted.

I implore the Board to review all comments and review and incorporate suggestions before moving to the proposed stage, even though various reviews have already been completed based on the preliminary draft text (including Secretary of Labor, ORM Review, and Governor Review). This NOIRA has produced much public input/involvement and believe the response received warrants reconsideration of the current preliminary text.  Changes at this stage will help to make the proposed stage more beneficial for all parties.  I also request a public meeting to be held at all future stages of this regulatory revision to allow of full participation.

Finally, I would like to thank DPOR for exerting the public comment period on this Notice of Intended Regulatory Action, to allow participants additional time to comment around the holidays and year end.