Dear Director Melis:
The Department of Professional and Occupational Regulation (DPOR) recently published notice of its periodic review of 18 VAC 145-30, Regulations Governing Certified Professional Wetland Delineators (PWD). The Department of Environmental Quality (DEQ) strongly supports that this regulation be retained for the numerous reasons described below.
On May 25, 2023, the United States Supreme Court issued its decision in the case titled Sackett v. Environmental Protection Agency (Sackett). The opinion reduces the number of wetland acres that are protected under the federal Clean Water Act (CWA). One of the immediate implementation issues associated with this decision is whether permit applications and wetland jurisdictional determinations will be processed by the U.S. Army Corps of Engineers (Corps) in a timely, predictable, and consistent manner see DEQ Memo to Stakeholders.
Also on May 25, 2023, independent from the Sackett decision, the Norfolk District of the Corps published a notice of its intended prioritization of jurisdictional determinations and confirmations of delineations of aquatic resources. The Corps’ public notice can be found at: https://www.nao.usace.army.mil/Media/Public-Notices/Article/3402545/notification-to-thepublic-of-changes-to-the-districts-regulatory-program-pract/.
Historically, DEQ has relied on the Corps to perform and/or confirm the field delineation of wetlands in Virginia. DEQ does not have the staff or resources to undertake this important work. In fact, DEQ has estimated that we will need thirty (30) additional staff at a cost of four million dollars ($4 million) to replace the Corps efforts. Given that these resources are not available, DEQ has recently initiated a program that relies on the use of professional wetland delineators. As described in the DEQ Memo to Stakeholders above, DEQ has developed protocols for State Surface Water Determinations (SSWD). When a SSWD request is submitted by a PWD using the required forms, DEQ will strive to review the SSWD request within 30 days. This will create an efficient infrastructure for the implementation of federal and state wetlands protection and permitting.
In addition to the critical role that PWDs serve in the state permitting process, certification of PWDs is necessary to protect the Commonwealth and its citizens and continues to satisfy the 4 criteria required for an occupation to be regulated (§54.1-100):
Inaccurate delineations or poor understanding of Virginia regulations can not only be costly to the permittee, but it also increases the onus of DEQ regulators with limited staff and time increasing permit issuance backlogs. Removing and/or reducing the scope of the Professional Wetland Delineator certification will increase the likelihood that key infrastructure projects are delayed which decrease the attractiveness of Virginia to investors in key sectors like energy, transportation, utilities, and data centers and increases the regulatory burden on permit applicants.
The importance of trained professionals in wetland delineation has recently been reaffirmed by the establishment of DEQ’s new Virginia State Waters Delineator (VSWD) Certification Program. (See DEQ News, Vol. 2, No. 10.) This new certification recognizes that the PWD certification is a critical component to assuring reliable and consistent identification of State Surface Waters, as holding a PWD certification is a prerequisite to the State Waters Delineator Certification.
Virginia has the oldest, active wetland delineator certification in the United States and the only such certification that requires proficiency in botany, soil science, hydrology, and federal and Virginia regulations. No other occupation requires these proficiencies, and there is not a federal wetland delineator certification or equivalent certification.
The public needs and will benefit from state assurances of competency because Virginia regulates and requires permits for impacts within wetland and surface water boundaries currently unregulated at the Federal level. Using a certified PWD reduces the risk and harms which can be caused by improper delineation and poor regulatory applications and helps assure potential Virginia economic investors that their projects can move through the permitting process on schedule. Keeping the PWD certification will be critical to providing more certainty and timely reviews in the state project permit review process.
No other certification program provides assurances of competency in the practice of wetland delineation and regulations in Virginia. There is not a federal wetland delineator certification or equivalent. The Society of Wetland Scientists (SWS) international Professional Wetland Scientist (PWS) certification does not require any specific proficiency related to wetland delineation or regulation. The PWS certification does not provide the Virginia regulated public assurance that their project will receive an accurate delineation or be guided through the Virginia and Federal regulatory process appropriately because they are not a requirement to receive the PWS designation. The PWD and PWS certifications are NOT substantially similar, and the PWS certification does NOT provide Virginia consumers with the same assurances in certifying the competencies of an individual in the practice of wetland delineations within the Commonwealth.
In conclusion, the PWD certification is necessary for the Commonwealth of Virginia because it protects the public from inadequate delineations, avoids costly errors in development, reduces permitting backlog for regulators, and ensures protection of wetland resources and the Virginia economy. Given that DEQ’s new State Surface Water Determination process recognizes the critical importance of the professional wetland delineator designation, DEQ strongly recommends that 18 VAC 145-30, Regulations Governing Certified Professional Wetland Delineators, be retained.
Thank you for your consideration of these comments.
Sincerely,
Michael S. Rolband