BILL REQ. #:  S-0185.2 

Read first time 01/18/11.   Referred to Committee on Labor, Commerce & Consumer Protection.

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

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

NEW SECTION.  Sec. 1   The legislature intends 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. Nothing in this chapter prevents uncertified soil scientists or uncertified wetland scientists from conducting their normal work and activities, as long as they do not use the regulated title defined in this chapter. Nothing in this chapter prevents other professionals in related agriculture, earth and physical sciences from performing their normal and customary work and activities as long as they do not use the regulated title defined in this chapter. This list of other professionals includes, but is not limited to: Engineers, geologists, geotechnical professionals, architects, landscape architects, foresters, agronomists, farmers, ranchers, biologists, planners, and environmental professionals.

NEW SECTION.  Sec. 2   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Board" means the regulatory board created in section 5 of this act.
     (2) "Department" means the department of licensing.
     (3) "Director" means the director of the department of licensing.
     (4) "Holder" means a person who has been issued a certificate under this chapter.
     (5) "Responsible charge" means the exercise of fully independent control and direction of soil science or wetland science work, or both, or the supervision of the work, and being fully responsible, answerable, accountable, or liable for the results.
     (6) "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 or position on landscape, and biogeochemical processes acting on the original parent material over time. These changes occur as a result of the four agents of soil formation: Additions, losses, translocations, and transformations. Soil extends from the surface of the earth down to undifferentiated or unweathered parent material.
     (7)(a) "Soil science" means the science that:
     (i) Involves the study of various aspects of the living soil ecosystem and includes the following focused subject areas:
     (A) Soil physics;
     (B) Soil chemistry and mineralogy;
     (C) Soil biochemistry;
     (D) Soil fertility; and
     (E) Soil genesis, soil geomorphology, and classification; and
     (ii) Can be used to provide information for projects including, but not limited to, the following:
     (A) Management of water quantity by calculating hydraulic conductivity and utilizing or monitoring near-surface infiltration and percolation capabilities on a soil-specific basis;
     (B) Treatment of polluted water using soil microbial populations working in concert with natural soil chemistry and mineralogy;
     (C) Treatment of polluted soils using soil biochemical and physical applications;
     (D) Preparation of soil erosion control plans, or evaluation of soil erosion potential;
     (E) Interpretation of soil morphology or hydrology that indicates a wetland condition;
     (F) Conservation, protection, and enhancement of soil carbon sequestration and storage processes for the purposes of reducing carbon dioxide and other greenhouse gases; and
     (G) Preparation of detailed soil maps that can be used for site-specific soil management, such as erosion control plans.
     (b) "Soil science" does not describe a state-regulated practice, and does not mean the study, description, amelioration, or engineering of unconsolidated materials above bedrock as defined in traditional practice of geologists, engineers, and foresters. Soil science specifically does not include practice of soil mechanics or the evaluation of mass wasting or landslide processes with the exception of studies involved with surface soil erosion and standard soil physics processes.
     (8) "State certified 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.
     (9) "State certified 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.
     (10) "Wetland" has the same meaning as in RCW 36.70A.030.
     (11)(a) "Wetland science" means the science that:
     (i) Studies wetland systems and includes, but is not limited to, the following focused subject areas:
     (A) Wetland delineation, which is the formal identification and marking of the wetland boundary on the land surface;
     (B) Wetland mitigation, which provides compensation to offset wetland or wetland buffer losses as required by federal, state, or local regulations;
     (C) 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;
     (D) Wetland rating, which is used to evaluate a wetland's quality based on individual functions and values;
     (E) Wetland monitoring, including vegetation, soil sampling, and near-surface hydrology monitoring; and
     (F) Wetland ecology, which evaluates the interrelationship of organisms and their wetland environments; and
     (ii) Can be used to provide information for projects including, but not limited to, the following:
     (A) Providing assistance with defining developable portions of a property, based on local regulations, as might be limited by wetland or stream presence and their related buffers; or
     (B) Assessing wetland type or functions for purposes of identifying compensation or mitigation; or
     (C) Carrying out long-term wetland monitoring programs, intended to define whether an implemented mitigation plan has met specified permit requirements and conditions established by local, state, or federal government officials.
     (b) "Wetland science" does not describe a state-regulated practice, and does not mean the study, description, and amelioration of wetlands as is specifically defined or carried out in traditional practice of geologists, engineers, and foresters.

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 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 may not be interpreted to apply to:
     (a) Officers and employees of the United States using the title of certified soil scientist or certified wetland scientist solely as such officers or employees;
     (b) Persons using the title of certified soil scientist or certified wetland scientist on manuscripts or reports resulting from research at an academic institution; and
     (c) Persons using the title of certified soil scientist or certified 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 retains the services of persons certified under this chapter to provide analysis or advice on soil science or wetland science is not admissible in an action for damages or negligence nor is it evidence of noncompliance in any action by state, local, or federal governments to enforce an order or regulation.

NEW SECTION.  Sec. 5   (1)(a) There is created a board for soil scientists and wetland scientists consisting of seven members appointed by the director.
     (b) 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 board must be a resident of the state. The public member may not be or may not have ever been a state certified soil scientist or a state certified wetland scientist and may not employ or may not be employed by, or professionally or financially associated with, a state certified soil scientist or state certified wetland scientist.
     (c) The director shall deliver a certificate of appointment to each member of the board. The individuals appointed to the board must be chosen 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 board must be three years, except that the initial appointees to the board shall 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 board 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 board. Any member who is reappointed following an absence of at least one year from the board 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 board. No member of the board, other than the public member, may be considered for reappointment if not certified in accordance with this chapter.
     (2)(a) Members of the board 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.
     (b) The director may for just cause remove a member of the regulatory board. The director shall appoint a new member to fill any vacancy in the regulatory board for the remainder of the unexpired term.
     (3) The board shall elect a chair, a vice-chair, and a secretary. The secretary may delegate his or her authority to the executive director.
     (4) The director shall employ an executive director, subject to approval of the board.
     (5) Members of the board must be compensated in accordance with RCW 43.03.240 and must be reimbursed for travel expenses in accordance with RCW 43.03.050 and 43.03.060.
     (6) Four members constitute a quorum of the board.
     (7) At the request of the board, the director may appoint additional temporary members to the board for assistance with rule development and technical advice on complaints. Temporary members must meet the same minimum qualifications as regular members of the board. Temporary members have all the powers, duties, and immunities of regular members of the board and must be compensated in accordance with RCW 43.03.240 and must be reimbursed for travel expenses 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 board.

NEW SECTION.  Sec. 6   The board has the following authority in administering this chapter:
     (1) To adopt, amend, and rescind rules as deemed necessary to carry out this chapter;
     (2) To establish the minimum qualification for applicants for certification as provided by this chapter;
     (3) To approve the method of administration for examinations required by this chapter or by rule;
     (4) To adopt or recognize examinations prepared by other organizations;
     (5) To set the time and place of examinations, with the approval of the director;
     (6) To adopt standards of professional conduct and practice. Rules of professional conduct will be consistent with those outlined for similarly regulated professions; and
     (7) To take disciplinary action for violations of this chapter, as provided in chapter 18.235 RCW.

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 administer certification examinations approved by the board; and
     (3) To make appointments or modify appointments to the board.

NEW SECTION.  Sec. 8   (1) An applicant who applies for soil scientist certification or wetland scientist certification before July 1, 2013, is considered qualified for certification, without further written examination, if the applicant meets the standards described in subsections (2)(a) and (3) of this section for soil scientists and subsections (2)(a) and (4) of this section for wetland scientists. After July 1, 2013, the applicants must meet all of the standards described in subsections (2) and (3) of this section for soil scientists and subsections (2) and (4) of this section for wetland scientists in order to qualify for certification.
     (2) In order to become either a state certified soil scientist or a state certified wetland scientist, an applicant must:
     (a) Be of good moral and ethical character as attested to by letters of reference submitted by the applicant or as otherwise determined by the director; and
     (b) Pass an examination developed or accepted by the board covering soil science subject matter for the soil scientist applicant or wetland science subject matter for the wetland scientist applicant.
     (3) For a Washington state certified soil scientist, an applicant must:
     (a) Have graduated from a course of study from an accredited college or university with a four-year degree in soil science, or other physical, or natural resources science curriculum considered satisfactory to the board; and
     (b) Have a documented record of a minimum of five years of experience, obtained after completion of the majority of the academic requirements specified in this section, in soil science work of a character satisfactory to the board, demonstrating that the applicant is qualified to assume responsible charge of the work upon certification as a soil scientist. At least two years of the experience must be gained under the supervision of a soil scientist certified or credentialed in this or any other state, or under the supervision of others who, in the opinion of the board, are qualified to have responsible charge of soil science work. The board may accept up to two years of postgraduate study, either M.S. or Ph.D., in soil science research, or up to two years of research or teaching of soil science at the college or university level, as qualifying experience, provided that the graduate work, research or teaching, in the judgment of the board, is comparable to experience obtained in the practice of soil science.
     (4) For a wetland scientist, the applicant must:
     (a) Have graduated from a course of study from an accredited college or university with a four-year degree in wetland science, biology, ecology, soil science, environmental science, hydrology, environmental studies, landscape architecture, or other biological, physical, or natural resources science curriculums considered satisfactory to the board. Other qualifying education or training may be accepted in lieu of a four-year degree, including continuing education classes or formal training in wetland science outside of a college environment if the training is reviewed and considered satisfactory to the board; and
     (b) Have a documented record of a minimum of five years of professional experience obtained after completion of the majority of academic requirements specified in this section, in wetland science work of a character satisfactory to the board, demonstrating that the applicant is qualified to assume responsible charge of the work upon certification as a wetland scientist. At least two years of the experience must be gained under the supervision of a wetland scientist certified or credentialed in this or any other state, or under the supervision of others who, in the opinion of the board, are qualified to have responsible charge of wetland science work. The board may accept up to two years of postgraduate study, either M.S. or Ph.D., in wetland science research, or up to two years of research or teaching of wetland science at the college or university level, as qualifying experience, provided that the graduate work, research or teaching, in the judgment of the board, is comparable to experience obtained in the practice of wetland science.

NEW SECTION.  Sec. 9   (1) The examination for a soil scientist's certificate or a wetland scientist's certificate shall be held at least annually at such time and place as the board determines.
     (2) The board shall determine the content, scope, and grading process of the examination. The board may adopt an appropriate national examination and grading procedure.
     (3) Applicants who fail to pass any section of the examination shall be permitted to retake the parts failed as prescribed by the board. If the entire examination is not successfully completed within five years, a retake of the entire examination shall be required.

NEW SECTION.  Sec. 10   An application for certification must be filed with the director on a form provided by the director. The director may require any information and documentation that reasonably relates to the need to determine whether the applicant meets the criteria for certification. Fees for initial certification include issuance of a certificate and are nonrefundable.

NEW SECTION.  Sec. 11   (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 state certified soil scientist or a 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. 12   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 board, meet the requirements of this chapter and the rules adopted by the board.

NEW SECTION.  Sec. 13   The board shall require persons certified under this chapter to obtain continuing professional development or continuing education. The board 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. 14   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 delinquent. 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 delinquent for five years or more may be reinstated in conformance with rules adopted by the board.

NEW SECTION.  Sec. 15   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. 16   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) 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;
     (3) 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;
     (4) 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;
     (5) 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;
     (6) 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;
     (7) 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;
     (8) Requesting, proposing, or accepting professional commissions on a contingent basis under circumstances in which the holder's integrity may be compromised;
     (9) Falsifying records, making false statements, intimidating or slandering professional peers;
     (10) Willfully attempting to interfere with a director's investigation by falsifying records, making false statements, or intimidating or influencing witnesses; or
     (11) Willfully attempting to suborn another person to violate the law, public policy, or his or her code of professional ethics.

NEW SECTION.  Sec. 17   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. 18   The director shall suspend the certificate or registration of any person who has been certified by a lending agency and reported to the department for nonpayment or default on a federally or state-guaranteed educational loan or service-conditional scholarship. Prior to the suspension, the agency must provide the person an opportunity for a brief adjudicative proceeding under RCW 34.05.485 through 34.05.494 and issue a finding of nonpayment or default on a federally or state-guaranteed educational loan or service-conditional scholarship. The person's certificate or registration may not be reissued until the person provides the director a written release issued by the lending agency stating that the person is making payments on the loan in accordance with a repayment agreement approved by the lending agency. If the person has continued to meet all other requirements for certification or registration during the suspension, reinstatement is automatic upon receipt of the notice and payment of any reinstatement fee the director may impose.

NEW SECTION.  Sec. 19   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. 20   RCW 18.235.020 and 2010 c 179 s 18 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;
     (xx) Home inspectors under chapter 18.280 RCW;
     (xxi) Body artists, body piercers, and tattoo artists, and body art, body piercing, and tattooing shops and businesses, under chapter 18.300 RCW; and
     (xxii) Appraisal management companies under chapter 18.310 RCW.
     (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 Washington state collection agency board established in chapter 19.16 RCW;
     (iii) 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;
     (iv) The funeral and cemetery board established in chapter 18.39 RCW governing licenses issued under chapters 18.39 and 68.05 RCW;
     (v) The state board of licensure for landscape architects established in chapter 18.96 RCW; ((and))
     (vi) The state geologist licensing board established in chapter 18.220 RCW; and
     (vii) The state board of soil scientists and wetland scientists established in chapter 18.--- RCW (the new chapter created in section 23 of this act).
     (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. 21   RCW 43.24.150 and 2009 c 429 s 4, 2009 c 412 s 21, and 2009 c 370 s 19 are each reenacted and 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 18.145 RCW, court reporters;
     (d) Chapter 18.165 RCW, private investigators;
     (e) Chapter 18.170 RCW, security guards;
     (f) Chapter 18.185 RCW, bail bond agents;
     (g) Chapter 18.280 RCW, home inspectors;
     (h) Chapter 19.16 RCW, collection agencies;
     (i) Chapter 19.31 RCW, employment agencies;
     (j) Chapter 19.105 RCW, camping resorts;
     (k) Chapter 19.138 RCW, sellers of travel;
     (l) Chapter 42.44 RCW, notaries public;
     (m) Chapter 64.36 RCW, timeshares;
     (n) Chapter 67.08 RCW, boxing, martial arts, and wrestling; ((and))
     (o) Chapter 18.300 RCW, body art, body piercing, and tattooing; and
     (p) Chapter 18.--- RCW (the new chapter created in section 23 of this act), soil scientists and wetland scientists.
     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 be accumulated and shall 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 include the estimated income from these business and professions fees.

NEW SECTION.  Sec. 22   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. 23   Sections 1 through 19 of this act constitute a new chapter in Title 18 RCW.

NEW SECTION.  Sec. 24   Sections 1, 2, 4 through 10, 15, and 20 through 22 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and take effect July 1, 2011.

NEW SECTION.  Sec. 25   Sections 3, 11 through 14, and 16 through 19 of this act take effect July 1, 2013.

NEW SECTION.  Sec. 26   The director of the department of licensing may take the necessary steps to ensure that sections 3, 10 through 13, and 15 through 19 of this act are implemented by July 1, 2013.