BILL REQ. #:  H-0037.3 

Read first time 02/02/09.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to soil and wetland scientists; amending RCW 18.235.020 and 43.24.150; adding a new chapter to Title 18 RCW; creating a new section; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that in order to protect life, property, and health, and to promote public welfare, it is in the public interest to regulate soil science and wetland science as professions by establishing minimum standards of ethical conduct and professional responsibility and by establishing professional education and experience requirements for those persons representing to the public that they are soil scientists or wetland scientists certified by the state.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Advisory committee" means the advisory committee created in section 5 of this act.
     (2) "Certifying organizations" means the two national organizations that certify soil scientists and the one national organization that certifies wetland scientists. For soil scientists, the certifying organizations are the soil science society of America (SSSA) and the national society of consulting soil scientists (NSCSS). For wetland scientists, the certifying organization is the society of wetland scientists professional certification program (SWS-PCP).
     (3) "Department" means the department of licensing.
     (4) "Director" means the director of the department of licensing.
     (5) "Holder" means a person who has been issued a certificate under this chapter.
     (6) "Responsible charge" means the exercise of fully independent control and direction of soil science or wetland science work, or both, or the supervision of such work, and being fully responsible, answerable, accountable, or liable for the results.
     (7) "Soil" means a living ecosystem that is composed of living and once-living organic materials combined with inorganic mineral materials derived from the break down and weathering of rocks at the earth's surface. Soil develops as a result of weathering processes that reflect effects of climate, topography, and biology acting on the original parent material over time. Soil extends from the surface of the earth down to undifferentiated or unweathered parent material.
     (8) "Soil science" means the science that:
     (a) Involves the study of various aspects of the living soil ecosystem and includes the following focused subject areas:
     (i) Soil physics;
     (ii) Soil chemistry and mineralogy;
     (iii) Soil biochemistry;
     (iv) Soil fertility; and
     (v) Soil genesis, morphology, and classification; and
     (b) Can be used to provide information for projects including, but not limited to, the following:
     (i) Management of water quantity by utilizing infiltration and percolation capabilities on a soil-specific basis;
     (ii) Treatment of polluted water using soil microbial populations working in concert with natural soil chemistry and mineralogy;
     (iii) Treatment of polluted soils using soil biochemical and physical applications;
     (iv) Interpretation of soil morphology that indicates a wetland condition; and
     (v) Preparation of detailed soil maps that can be used for site-specific soil management, such as erosion control plans.
     (9) "Soil scientist" means a person who, by reason of the person's knowledge of soil science, mathematics, the environment, and the supporting physical and life sciences, acquired by education and practical experience, has met the qualifications established under this chapter, and has been issued a certificate as a soil scientist by the director.
     (10) "Wetland" means an area that:
     (a) Predominantly supports wetland vegetation;
     (b) Has hydric soils; and
     (c) Has wetland hydrology, as defined in RCW 90.58.030.
     (11) "Wetland science" means the science that:
     (a) Studies wetland systems and includes, but is not limited to, the following focused subject areas:
     (i) Wetland delineation, which is the formal identification and marking of the wetland boundary on the land surface;
     (ii) Wetland mitigation, which describes compensation to offset wetland or wetland buffer losses as required by federal, state, or local regulations;
     (iii) Wetland classification, which defines and groups wetlands into discrete ecologically or geomorphically based units which are used to create management plans or to rate wetlands;
     (iv) Wetland rating, which is used to evaluate a wetland's quality based on individual functions and values; and
     (v) Wetland ecology, which evaluates the interrelationship of organisms and their wetland environments; and
     (b) Can be used to provide information for projects including, but not limited to, the following:
     (i) Defining legally developable portions of a property, as might be limited by wetland or stream presence; or
     (ii) Assessing wetland type for purposes of compensation or mitigation.
     (12) "Wetland scientist" means a person who, by reason of the person's knowledge of wetland science, mathematics, the environment, and the supporting physical and life sciences, acquired by education and practical experience, has met the qualifications established under this chapter, and has been issued a certificate as a wetland scientist by the director.

NEW SECTION.  Sec. 3   (1) Except as provided in subsection (2) of this section, it is unlawful for a person to use in connection with the person's name or otherwise assume or advertise the title soil scientist, soil classifier, wetland scientist, wetland delineator, wetland biologist, or wetland ecologist, or a title conveying the impression that the person is a state-certified soil scientist or state-certified wetland scientist unless the person has received the appropriate certification under this chapter.
     (2) Subsection (1) of this section does not apply to:
     (a) Officers and employees of the United States using the title of soil scientist or wetland scientist solely as such officers or employees.
     (b) Persons using the title of soil scientist or wetland scientist on manuscripts or reports resulting from research at an academic institution; and
     (c) Persons using the title of soil scientist or wetland scientist while teaching soil science or wetland science or related physical or natural sciences in an academic institution.

NEW SECTION.  Sec. 4   Whether a person or entity hires or does not hire a person certified under this chapter is not admissible in an action for damages or negligence.

NEW SECTION.  Sec. 5   (1) An advisory committee is created to provide recommendations to the director concerning the administration of this chapter. The advisory committee consists of seven members appointed by the director. Three members must be conversant with and experienced in the soil science profession; three members must be conversant with and experienced in the wetland science profession; and one member must represent the public. Subsequent to the initial appointments, all members except for the public member must be certified under this chapter. Each member of the advisory committee must be a resident of the state.
     (2) The director shall appoint to the advisory committee individuals from across the state, and from both public and private sectors, utilizing geographic and experiential diversity as much as possible. The terms of the members of the advisory committee must be three years, except that the initial appointees to the advisory committee serve the following terms to be specified by the director: Two members for one year, two members for two years, and three members for three years. No member of the advisory committee is eligible for reappointment to a third consecutive term, but any member is eligible for reappointment after an absence of at least one year from the advisory committee. Any member who is reappointed following an absence of at least one year from the advisory committee is eligible for reappointment to a second consecutive term and is again eligible for reappointment after an absence of at least one year from the advisory committee. No member of the advisory committee, other than the public member, may be considered for reappointment if not certified in accordance with this chapter.
     (3) Members of the advisory committee serve until replaced by a subsequent appointment, even if their appointment exceeds the length of their term, but may resign prior to completing the term of appointment. The director may for just cause remove an advisory committee member. The director shall appoint a new member to fill any vacancy on the advisory committee for the remainder of the unexpired term. Members of the advisory committee may not be compensated, but must be reimbursed for expenses incurred in accordance with RCW 43.03.050 and 43.03.060. Four members constitute a quorum of the committee.
     (4) At the request of the advisory committee, the director may appoint additional temporary members to the advisory committee for assistance with rule development and technical advice on complaints. Temporary members must meet the same minimum qualifications as regular members of the advisory committee. Temporary members have all the powers, duties, and immunities of regular members of the advisory committee and must be reimbursed for expenses incurred in accordance with RCW 43.03.050 and 43.03.060. The director shall limit the term of temporary members to one year, but may extend the original appointment up to one additional year at the request of the advisory committee.

NEW SECTION.  Sec. 6   The advisory committee shall make recommendations to the director regarding:
     (1) Developing and adopting rules to administer this chapter including, but not limited to, evaluating the experience, scope, and standards of the practice of soil science or wetland science;
     (2) Reviewing complaints and investigations pertaining to this chapter;
     (3) Performing other duties deemed necessary by the director; and
     (4) Establishing additional certifying organizations recognized for the purposes of certifying individuals under this chapter.

NEW SECTION.  Sec. 7   The director has the following authority in administering this chapter:
     (1) To adopt fees as provided in RCW 43.24.086;
     (2) To adopt rules necessary to carry out this chapter;
     (3) To establish the minimum qualifications for applicants for certification as provided by this chapter;
     (4) To adopt standards of professional conduct and practice;
     (5) To make appointments or modify appointments to the advisory committee;
     (6) To take disciplinary action for violations of this chapter as provided in chapter 18.235 RCW.

NEW SECTION.  Sec. 8   To become a certified soil scientist or certified wetland scientist, an applicant must meet the requirements of this section:
     (1) For a soil scientist, the applicant must be a certified professional soil scientist (CPSS) or a certified professional soil classifier (CPSC) through the soil science society of America (SSSA), or a registered professional soil scientist (RPSS) through the national society of consulting soil scientists (NSCSS) or other similar organization established by rule by the director upon recommendation of the advisory committee;
     (2) For a wetland scientist, the applicant must be a certified professional wetland scientist (PWS) through the society of wetland scientists professional certification program (SWS-PCP) or other similar organization established by rule by the director upon recommendation of the advisory committee.

NEW SECTION.  Sec. 9   An application for certification must be filed with the director on a form provided by the director and must contain statements made under oath demonstrating the applicant's current status in good standing with the certifying organizations described in section 8 of this act. The director may require any information and documentation that reasonably relates to the need to determine whether the applicant meets the criteria for certification. The application fee for initial certification must be determined by the director as provided in RCW 43.24.086. The application, together with the fee, must be submitted to the department prior to the application deadline established by the director. Fees for initial certification include issuance of a certificate and are nonrefundable.

NEW SECTION.  Sec. 10   (1) The director shall issue a certificate to any applicant who has satisfactorily met all of the requirements of this chapter for certification as a soil scientist or wetland scientist. The certificate must show the full name of the holder, have a unique certification number, and be signed by the director. The issuance by the director of a certificate to an individual is prima facie evidence that the person is entitled to all the rights and privileges of a Washington state certified soil scientist or a Washington state certified wetland scientist while the certificate remains unrevoked or unexpired.
     (2) Each holder must obtain a seal of the design authorized by the director, bearing the holder's name, certification number, and the legend "Washington state certified soil scientist" or "Washington state certified wetland scientist." Soil science or wetland science reports, plans, and other technical documents prepared by or under the responsible charge of the holder must be signed, dated, and stamped with the seal or facsimile of the seal. Each signature and stamping constitutes a certification by the holder that the document was prepared by or under the holder's responsible charge and that, to the holder's knowledge and belief, the document was prepared in accordance with the requirements of this chapter.

NEW SECTION.  Sec. 11   The director may, upon application and payment of a fee determined by the director as provided in RCW 43.24.086, issue a certificate to any person who holds valid credentials issued by the proper authority of any state, territory, or possession of the United States, District of Columbia, or any foreign country, if the applicant's qualifications, as evaluated by the director, meet the requirements of this chapter and the rules adopted by the director.

NEW SECTION.  Sec. 12   The director shall require persons certified under this chapter to obtain continuing professional development or continuing education. The director may also require these certificate holders to demonstrate maintenance of knowledge and skills as a condition of certificate renewal, including peer review of work products.

NEW SECTION.  Sec. 13   Certificates issued under this chapter must be renewed periodically on a date to be set by the director. Fees for renewals must be set by the director by rule as provided in RCW 43.24.086. Any holder who fails to pay the prescribed fee must have his or her certificate classified as invalid. Certificate holders who fail to pay the renewal fee within thirty days of the due date shall pay a penalty fee equal to one year's renewal. Any certificate that has been expired for five years or more may be reinstated in conformance with rules adopted by the director.

NEW SECTION.  Sec. 14   All receipts from fees and fines collected under this chapter must be deposited into the business and professions account described in RCW 43.24.150. Expenditures from the fees and fines collected under this chapter deposited in the account may be used only for the purposes of administering this chapter.

NEW SECTION.  Sec. 15   In addition to the unprofessional conduct described in RCW 18.235.130, the following conduct, acts, and conditions constitute unprofessional conduct:
     (1) Violating any of the provisions of this chapter or the rules adopted under this chapter;
     (2) Suspension, revocation, or restrictions of certification through the certifying groups described in section 8 of this act;
     (3) Committing any other act, or failing to act, in a manner contrary to normal professional conduct or contrary to a standard generally expected of those practicing soil science or wetland science;
     (4) Failing to comply with the terms and conditions of an order issued by the director;
     (5) Failing to respond to inquiries from clients or other professionals regarding conflicts with the holder's work, opinions, or procedures, in a manner that would be expected from a prudent practitioner;
     (6) Modifying another holder's work without notifying that holder and clearly describing the modifications in writing and signing the report describing the modifications. However, this subsection does not apply when the plans, maps, or documents are modified by the owner to reflect changes over time for the owner's own purposes and are not used for submittals or bid documents;
     (7) Offering or accepting money, goods, or other favors as inducement to receive favorable consideration for a professional assignment or as an inducement to approve, authorize, or influence the granting of a professional assignment;
     (8) Soliciting or accepting gratuities, directly or indirectly, from contractors, their agents, or other parties dealing with clients or employers in connection with work for which the holder is responsible;
     (9) Using privileged information coming to the holder in the course of his or her assignments as a means of making personal profit beyond their professional compensation;
     (10) Requesting, proposing, or accepting professional commissions on a contingent basis under circumstances in which the holder's integrity may be compromised;
     (11) Willfully attempting to interfere with a director's investigation by falsifying records, making false statements, or intimidating or influencing witnesses; or
     (12) Willfully attempting to suborn another person to violate the law, public policy, or his or her code of professional ethics.

NEW SECTION.  Sec. 16   The director shall immediately suspend the certificate of a person who has been certified pursuant to RCW 74.20A.320 by the department of social and health services as a person who is not in compliance with a child support order. If the person has continued to meet all other requirements for a certificate under this chapter during the suspension, reissuance of the certificate must be automatic upon the director's receipt of a release issued by the department of social and health services stating that the holder is in compliance with the child support order. The procedure in RCW 74.20A.320 is the exclusive administrative remedy for contesting the establishment of noncompliance with a child support order, and suspension of a certificate under this section, and satisfies the requirements of RCW 34.05.422.

NEW SECTION.  Sec. 17   The uniform regulation of business and professions act, chapter 18.235 RCW, governs the issuance and denial of certificates, and the discipline of holders under this chapter.

Sec. 18   RCW 18.235.020 and 2008 c 119 s 21 are each amended to read as follows:
     (1) This chapter applies only to the director and the boards and commissions having jurisdiction in relation to the businesses and professions licensed under the chapters specified in this section. This chapter does not apply to any business or profession not licensed under the chapters specified in this section.
     (2)(a) The director has authority under this chapter in relation to the following businesses and professions:
     (i) Auctioneers under chapter 18.11 RCW;
     (ii) Bail bond agents and bail bond recovery agents under chapter 18.185 RCW;
     (iii) Camping resorts' operators and salespersons under chapter 19.105 RCW;
     (iv) Commercial telephone solicitors under chapter 19.158 RCW;
     (v) Cosmetologists, barbers, manicurists, and estheticians under chapter 18.16 RCW;
     (vi) Court reporters under chapter 18.145 RCW;
     (vii) Driver training schools and instructors under chapter 46.82 RCW;
     (viii) Employment agencies under chapter 19.31 RCW;
     (ix) For hire vehicle operators under chapter 46.72 RCW;
     (x) Limousines under chapter 46.72A RCW;
     (xi) Notaries public under chapter 42.44 RCW;
     (xii) Private investigators under chapter 18.165 RCW;
     (xiii) Professional boxing, martial arts, and wrestling under chapter 67.08 RCW;
     (xiv) Real estate appraisers under chapter 18.140 RCW;
     (xv) Real estate brokers and salespersons under chapters 18.85 and 18.86 RCW;
     (xvi) Security guards under chapter 18.170 RCW;
     (xvii) Sellers of travel under chapter 19.138 RCW;
     (xviii) Timeshares and timeshare salespersons under chapter 64.36 RCW;
     (xix) Whitewater river outfitters under chapter 79A.60 RCW; ((and))
     (xx) Home inspectors under chapter 18.280 RCW; and
     (xxi) Soil scientists and wetland scientists under chapter 18.--RCW (the new chapter created in section 21 of this act).
     (b) The boards and commissions having authority under this chapter are as follows:
     (i) The state board of registration for architects established in chapter 18.08 RCW;
     (ii) The cemetery board established in chapter 68.05 RCW;
     (iii) The Washington state collection agency board established in chapter 19.16 RCW;
     (iv) The state board of registration for professional engineers and land surveyors established in chapter 18.43 RCW governing licenses issued under chapters 18.43 and 18.210 RCW;
     (v) The state board of funeral directors and embalmers established in chapter 18.39 RCW;
     (vi) The state board of registration for landscape architects established in chapter 18.96 RCW; and
     (vii) The state geologist licensing board established in chapter 18.220 RCW.
     (3) In addition to the authority to discipline license holders, the disciplinary authority may grant or deny licenses based on the conditions and criteria established in this chapter and the chapters specified in subsection (2) of this section. This chapter also governs any investigation, hearing, or proceeding relating to denial of licensure or issuance of a license conditioned on the applicant's compliance with an order entered under RCW 18.235.110 by the disciplinary authority.

Sec. 19   RCW 43.24.150 and 2008 c 119 s 22 are each amended to read as follows:
     (1) The business and professions account is created in the state treasury. All receipts from business or professional licenses, registrations, certifications, renewals, examinations, or civil penalties assessed and collected by the department from the following chapters must be deposited into the account:
     (a) Chapter 18.11 RCW, auctioneers;
     (b) Chapter 18.16 RCW, cosmetologists, barbers, and manicurists;
     (c) Chapter 18.96 RCW, landscape architects;
     (d) Chapter 18.145 RCW, court reporters;
     (e) Chapter 18.165 RCW, private investigators;
     (f) Chapter 18.170 RCW, security guards;
     (g) Chapter 18.185 RCW, bail bond agents;
     (h) Chapter 18.280 RCW, home inspectors;
     (i) Chapter 19.16 RCW, collection agencies;
     (j) Chapter 19.31 RCW, employment agencies;
     (k) Chapter 19.105 RCW, camping resorts;
     (l) Chapter 19.138 RCW, sellers of travel;
     (m) Chapter 42.44 RCW, notaries public; ((and))
     (n) Chapter 64.36 RCW, timeshares; and
     (o) Chapter 18.-- RCW (the new chapter created in section 21 of this act).
     Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for expenses incurred in carrying out these business and professions licensing activities of the department. Any residue in the account ((shall)) must be accumulated and ((shall)) may not revert to the general fund at the end of the biennium.
     (2) The director shall biennially prepare a budget request based on the anticipated costs of administering the business and professions licensing activities listed in subsection (1) of this section, which ((shall)) must include the estimated income from these business and professions fees.

NEW SECTION.  Sec. 20   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 21   Sections 1 through 17 of this act constitute a new chapter in Title 18 RCW.

NEW SECTION.  Sec. 22   Sections 1 through 20 of this act take effect January 1, 2011.

NEW SECTION.  Sec. 23   The director of the department of licensing may take the necessary steps to ensure that sections 1 through 20 of this act are implemented on January 1, 2011.