I am strongly recommending the Virginia Board of Professional and Occupational Regulation (BPOR) continue the certification program for Certified Wetland Delineators, in fact I believe it should be strengthened as detailed below. 

I believe my perspective on this is of interest to the BPOR as I was not in favor of the program when it began but am now a strong advocate.  I have long held both the BPOR Professional Wetland Delineator (PWD) certification ( number 3402000060) and am a Senior Professional Wetland Scientist (via the Society of Wetland Scientists (SWS), number 381), and can tell you from experience with the public they are very different and that the BPOR program must remain in place, and in fact be strengthened.  I will cite  examples of the need for such a program in Virginia, and frankly the strengthening of the program to protect the Citizens of Virginia. I am proud to say my entire 34-year career has involved wetland consulting on delineations, permitting, regulatory analysis and mitigation, 31 years of which has been in the Hampton Roads region of Virginia.  By way of background, I have testified before a committee of the United States House of Representatives on wetlands and waters regulation, hold a Masters Degree in Marine Science, have published scientific papers, and served on several Regulatory Advisory Committees on behalf of the Virginia Department of Environmental Quality, and Virginia Department of Conservation and Recreation.  I have personally performed or managed delineations on well over 10,000 acres of land in Virginia.

First, I want to clarify that the program managed by the SWS, is not substantively similar to that of the BPOR, and does not serve the public well, nor was SWS’s program established to serve the citizens of Virginia.  The SWS program focusses on a broad understanding of wetland science and policy and requires only education and letters of recommendations, thus no practical understanding of associated regulations, let alone delineation procedures.  As such it does not even focus on the procedures of wetland delineation in the United States, let alone in Virginia.  For example:

A person holding a Ph.D. in wetland science, specializing in say soil chemistry, will be able to secure a SWS certification through their course work and letters of recommendation, and yet have not a single day’s experience finding and delineating (flagging the physical boundary as determined by regulation and policy) the boundary of a wetland.  This person would fail the BPOR exam.  This is a good thing because  BPOR is certifying proficiency in the specific part of the practice that determines where laws become effective and certain activities are illegal without permits.  Knowing this is imperative to a consultant working in the field on behalf of landowners, and thus to the public’s benefit.

Please note, that the recently promulgated Navigable Waters Protection Rule (NWPR, Federal Register 33 CFR Part 328, June 22, 2020), makes it now even more clear the SWS program does not provide any substantive benefit to the citizens of Virginia as now there are wetlands regulated in Virginia that are no longer regulated by the Federal government.  Consequently, it is necessary for those performing delineations in Virginia to understand the limits of the Commonwealth’s wetland program, which is the purpose of the BPOR PWD.

With regards to strengthening the program, I feel there are two needs: 1) continuing education requirement since the procedures change over time and 2) expand the program to include basic understanding of the wetland regulatory program in Virginia.  This would strengthen the practical knowledge of those receiving the certification and benefit the public by insuring there are those in the profession recognized for their knowledge about the delineation process and the regulatory program.  In my 34 years as a consultant, the delineation procedures have changed six times in (1987 Manual, 1989 Manual, in 1991 when the program went back to the 1987 procedures, in 2006 due to the Rapanos Supreme Court decision, 2010 Regional Supplement Manuals, in 2020 due to the NWPR regulations).

Frankly, I believe the time has come that the BPOR PWD become a mandatory program in Virginia.  A second example: 

I have been hired by owners and/or their attorneys to come in after consultants who provided landowners with improper delineations and incorrect advice.  Those shortcomings caused land owners to receive rejected delineations from the US Army Corps of Engineers, and in some cases notices of violation under Federal and/or State wetland regulations, causing significant loss of time and money to owners who relied on the recommendations of the consultants that were supposed to serve them. In none of these cases did the previous consultant possess a BPOR PWD certification. 

As the person cutting my hair must be licensed by DPOR in the Commonwealth, I think the person providing advice to land owners related to wetland boundaries, permits and related land-use requirements should be held to the same standard because the land involved is often worth tens-of- thousands to tens-of-millions of dollars.

Thank you for this opportunity to provide comment.

Sincerely,

Bob Kerr,

Virginia Certified Professional Wetland Delineator,

Senior Professional Wetland Scientist