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Virginia rolling back regulations for wetland delineators under Youngkin directive

Coastal wetlands off the Eastern Shore of Virginia. (Photo by Sarah Vogelsong / Virginia Mercury)
Coastal wetlands off the Eastern Shore of Virginia. (Photo by Sarah Vogelsong / Virginia Mercury)

Those puddles of water along highways and property that seem like swamps are wetlands, a natural resource with numerous environmental benefits ranging from wildlife habitat and protection from flooding.

This story was reported and written by our media partner The Virginia Mercury

How those wetlands are sited and how they are protected is determined by wetland delineators, who are professionally certified after rigorous training and years of experience.

But Virginia legislators this year rolled back one requirement for the job and are attempting further changes through a less public regulatory process. Current professional wetland delineators say those efforts could undermine the integrity of the state’s certification and efforts to preserve a natural resource that is already under threat.

“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,” wrote Eli Wright, a scientist at Dramby Environmental Consulting and past president of the Virginia Association of Wetland Professionals, in public  comments on changes already made.

“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 regulatory changes are being carried out under Republican Gov. Glenn Youngkin’s Executive Order 19, which calls for a 25% reduction in regulations across the state. The regulatory effort has resulted in similar concerns for cosmetology licenses and the Board of Housing and Community Development standards.

Youngkin spokesman Christian Martinez said the executive order is based on a regulatory reduction pilot program from 2018 that had received nearly unanimous support in the House and Senate, and he pointed out that the executive order requires agencies “to conduct a thorough regulatory economic analysis prior to implementing any regulatory change, ensuring that the benefits outweigh the costs while upholding crucial protections for public health, safety, and welfare.”

In this instance, there could be more harm than good, said Mary-Carson Stiff, executive director of the environmental non-profit Wetlands Watch. 

“There is a deep concern that certification will be weakened to such a degree that this will harm Virginia’s delineation,” she said. “This isn’t child’s play. This is potentially jeopardizing successful wetlands delineation for the commonwealth.”

Wetland bill

The  bill, as introduced by Del. Baxter Ennis, R-Chesapeake, would have reduced the course requirements, years of work experience and number of references an applicant for a professional wetland delineator needs.

The final version only cut the amount of years needed in research — from four years to three.

Ennis, in a Feb. 8 committee meeting, said the bill would “better align with the universal licensing recognition statute,“ a law that passed last year allowing people who have certifications in other states to be able to work in Virginia.

But Thaddeus J. Kraska, the director of environmental services at Townes Site Engineering, said experience is necessary for determining where a wetland is as well as navigating the state and federal permitting process.

“Based on my experience training professionals in the art/science of wetland delineation, accurate delineations are not something that can be learned and applied in only one to two years’ time,” Kraska wrote in an email. 

Any reduction to the educational requirements would also be harmful, particularly considering Virginia has three different regions of wetlands across the eastern tidewater region, central piedmont area and western mountainous terrain.

“Across Virginia there are a variety of complex systems from the Coastal Plain  pocosinsto mineral soil flats to areas bordering between physiographic provinces that pose challenges,” Kraska continued. 

According to statistics from a January meeting by the Board of Professional Soil, Wetland Delineators and Geologists, the board charged with overseeing the PWD certification process, about 40% of 12 applicants passed last year’s exam, speaking to the credibility of the certification, Kraska said.

“Educational requirements and experience are keys to ensuring that qualified people become certified as PWDs,” Kraska said.

Regulation cuts

Although some of the changes didn’t make it into state law, the board proposes making others through a regulatory process that comes on the heels of a periodic review that happened last year.

Among the changes the board most recently considered is removing a requirement that a reference for an applicant be a certified professional wetland delineator.

“Having a [certified PWD] as a reference helps to ensure that applicants have been trained/mentored by someone with demonstrated experience in the nuances of Virginia wetlands,” wrote Wright in his comments.

On Monday, the board deleted a sentence of the regulation and counted it toward the 25% reduction requirement, and also OK’d expanding the time frame from when applicants need to take the test for professional certification from within a one year period to three.

“The change of making this regulation less stringent, you’ll get credit [from the governor] for that,” said Joseph Haughwout, regulatory affairs manager at the Department of Professional and Occupational Regulation (DPOR), the agency taking direction from the board. “It may not be getting rid of the full requirement, but there is partial credit.”

Kate R. Nosbisch, executive director of DPOR, said, “We like credit.”

Some previously made changes were welcomed, such as clarifying references to tidal and non-tidal wetlands, the different forms of the natural resource that are overseen in Virginia. The board also considered removing a 32-hour delineation method instruction requirement that exists in federal law but ultimately left it.

Exceptions to achieving a 25% in reductions can be made, but they must be explained in the final decisions. The changes are expected to be discussed again at the board’s meeting in May before going to the governor for final review and another public comment period.

“DPOR’s Wetland Delineator regulatory review process pertains solely to eliminating administratively unnecessary and burdensome rules related to attaining professional certification as a Wetland Delineator while maintaining the profession’s standards and ensuring sufficient competency for the protection of the public,” wrote John Robertson IV, DPOR spokesperson.

Importance of PWD

In addition to providing comfort to developers that delineations are being done properly, the PWD certification is now a requirement to receive a “fast-tracked” review from the Department of Environmental Quality.

In June of 2023, the U.S. Supreme Court ruled that a surface water connection to navigable waters, or those used by boats, was needed for the U.S. Environmental Protection Agency to have oversight over any disturbance to them. 

Developers and farmers lauded the outcome because it meant they needed to only get a permit from the state, but environmental groups raised concern because wetlands are connected through intricate water systems underground and vulnerable to impacts made in a potentially distant area even though a visible connection isn’t there.

After the court ruling, the Virginia Department of Environmental Quality released  guidance saying that permit applications that receive delineations from State Surface Water Delineator (SSWD) professionals, prior to being submitted, will receive an expedited review. 

A requirement of that surface water delineation termination is the PWD certification, putting more pressure on maintaining the integrity of the PWD certification process.

“The integrity of one’s profession is vitally important,” said Kraska. “The quality of wetland delineations that pair with wetland permits is essential to ensure that these valuable resources are accurately identified and protected where possible.”

DEQ relies on the board and its regulations to ensure that PWDs are qualified, DEQ spokeswoman Irina Calos, said in an email, which contributes to the accuracy and completeness of applications DEQ reviews.

“With accurate and complete information, DEQ can approve SSWDs faster, which will also increase the efficiency of Virginia Water Protection (VWP) permit issuances,” Calos wrote. 

According to DPOR, the state had 11 PWD certifications in 2022, 29 in 2023 and 10 so far with 11 pending to date this year. Three have been issued through the Universal Licensing Regulation, two in 2023 and one this year. As of Feb. 1 there were about 120 certified PWDs.

“While the [Virginia Association of Wetland Professionals] welcomes seeing the numbers of PWDs grow, we do not want to see inflated numbers at the expense of poor-quality delineations that ultimately affect wetland permits,” said Kraska. 

Wetlands’ changing landscape

To preserve wetlands in Virginia, there is a “no net loss” policy, meaning developers must avoid, minimize or mitigate impact, potentially leading to paying into a fund to restore the natural resource.

The first step in determining what areas are protected and how much may need to be paid into the fund is having a delineation done.

As climate change continues to cause sea levels to rise and stormwater is flooding areas, the location of wetlands are evolving, with 89% of tidal wetlands and 51% of non-tidal wetlands projected to be lost by 2080, according to the state’s Coastal Resilience Master Plan.

“Wetlands can be smelly, muddy, whatever, they’re not popular with our manicured lifestyle,” Stiff said, but they are more productive ecosystems than coral reefs and the rainforest.

“We won’t have them forever,” Stiff said. “This delineator certification is a critical component of this protection.”

Without a professional able to accurately account for where the wetlands are, not only is the ecosystem susceptible to a loss, but a developer could be held liable for a lawsuit.

“Costs and burdens associated with litigations resulting from wetland delineation work performed by unqualified individuals can result in harm to these small businesses,” wrote Wright. “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.”