Kurt,
Regarding the cemetery location bill we spoke of on the phone I offer the following background
information and comments:
A few excerpts from the current law governing surveying in West Virginia:
§30-13A-1. Legislative findings; license required to practice.
The practice of surveying and underground surveying involves special knowledge in
mathematics and physical and applied sciences and specific knowledge in the principles and
methods of surveying and underground surveying, which knowledge can only be acquired
through education and practical experience in surveying and underground surveying. Land
surveying and underground surveying involve precise practices and should only be performed
by a person who has specific training in surveying or underground surveying.
Therefore, the Legislature finds that to protect the public interest and to provide for the
regulation of surveying and underground surveying in this state, a person must have a license,
as provided in this article, to practice as a surveyor in the state of West Virginia and a person
must have a surveyor's license and an endorsement, as provided in this article, to practice as an
underground surveyor in the state of West Virginia.
§30-13A-3. Definitions.
As used in this article, the following words and terms have the following meanings, unless the
context clearly indicates otherwise:
(gg) "Survey" or "land survey" means to measure a parcel of land and ascertain its boundaries,
corners and contents or make any other authoritative measurements. A survey can be any of
the following, but not limited to:
(1) The performance of a boundary, cadastral, construction, geodetic control, hydrographic,
land, mortgage/loan inspection, oil or gas well, partition, photogrammetry, retracement,
subdivision or surface mine survey by a licensed surveyor;
(2) The location, relocation, establishment, reestablishment, laying out or retracement of any
property line or boundary of any parcel of land or of any road or utility right-of-way, easement,
strip or alignment or elevation of any fixed works by a licensed surveyor; or
(3) The performance of an underground survey by an endorsed underground surveyor.
(hh) "Surveying" or "land surveying" means providing, or offering to provide, professional
services using such sciences as mathematics, geodesy, and photogrammetry, and involving
both: (1) The making of geometric measurements and gathering related information pertaining
to the physical or legal features of the earth, improvements on the earth, the space above, on
or below the earth; and (2) providing, utilizing or developing the same into survey products
such as graphics, data, maps, plans, reports, descriptions or projects. Professional services
include acts of consultation, investigation, testimony evaluation, expert technical testimony,
planning, mapping, assembling and interpreting gathered measurements and information
related to any one or more of the following:
(A) Determining by measurement the configuration or contour of the earth's surface or the
position of fixed objects thereon.
(B) Determining by performing geodetic surveys the size and shape of the earth or the position
of any point on the earth.
(C) Determining the position for any survey control monument or reference point.
(D) Creating, preparing or modifying electronic, computerized or other data relative to the
performance of the activities in the above-described paragraphs (A) through (C), inclusive, of
this subdivision.
(E) Locating, relocating, establishing, reestablishing or retracing property lines or boundaries of
any tract of land, road, right-of-way or easement.
(F) Making any survey for the division, subdivision, or consolidation of any tract or tracts of
land.
(G) Locating or laying out alignments, positions or elevations for the construction of fixed
works.
(H) Determining, by the use of principles of surveying, the position for any boundary or
nonboundary survey monument or reference point; or establishing or replacing any such
monument or reference point.
(I) Creating, preparing or modifying electronic or computerized or other data relative to the
performance of the activities in the above-described paragraphs (E) through (H), inclusive, of
this subdivision.
Any person who engages in surveying, who by verbal claim, sign, advertisement, letterhead,
card or in any other way represents themselves to be a professional surveyor, or who implies
through the use of some other title that they are able to perform, or who does perform, any
surveying service or work or any other service designated by the practitioner which is
recognized as surveying, is practicing, or offering to practice, surveying within the meaning and
intent of this article.
§30-13A-36. Exemption from licensing and regulation.
(a) The following persons are exempt from licensing and regulation under the provisions of this
article:
(1) Any employee or agent of a person, firm, association or corporation, when such employee
or agent is engaged in the practice of land surveying exclusively for the person, firm, association
or corporation by which employed, or, if a corporation, its parents, affiliates or subsidiaries, and
such person, firm, association or corporation does not hold himself, herself or itself out to the
public as being engaged in the business of land surveying.
(2) Any employee or officer of the United States, this state or any political subdivision thereof,
or their agents, when such employee is engaged in the practice of land surveying exclusively for
such governmental unit.
(b) The minimum standards for boundary surveys contained in section twenty-six of this article
apply, notwithstanding the exemptions provided by this section.
As you can see the definition of surveying covers a lot of ground. Subsection 36, commonly
referred to as “The government exemption” and “The corporate exemption” provides a way for
individuals and entities to legally conduct activities for themselves which would be considered
surveying under the law by definition. It has long been the position of the West Virginia Board of
Professional Surveyors and the West Virginia Society of Professional Surveyors that surveying for
yourself is not in violation of the law. You bear the liability for your own actions and therefore
the public is not endangered. Boundary surveying is the exception because your boundary is also
your neighbor’s boundary and, therefore they could be affected as well as others in the chain of
title when you eventually pass the property on. Now that said, let’s look at an excerpt from the
committee substitute for HB2957.
(b) The cooperative extension service of West Virginia University shall develop a
program to collect the name and longitudinal and latitudinal data of all cemeteries within
West Virginia, including those cemeteries otherwise referenced in section six, article
five-a, chapter thirty-five of this code. The program may then be implemented by county
cooperative extension service committees. Once implemented, extension workers,
along with members of local 4-H organizations, shall collect data with global positioning
system devices and provide said data to the Director of the Historic Preservation
Section of the Division of Culture and History, which shall serve as a repository for the
information.
Here are some of the concerns the WVSPS has with this proposal.
It mandates the data be collected with GPS devices. This may not always be the best method. I
am sure you know that a GPS device used incorrectly could result in significant error in the
positional data yielded.
There is no mention of accuracy standards but we assume WVU would develop and monitor
that.
There is no mention of how local 4-H workers would be supervised but we assume WVU would
develop a plan and monitor that. We are assuming the WVU and county extension workers
would be considered political subdivisions of the state as the term is used in §30-13A-36 above
in this instance and the 4-H workers would be considered agents thereof.
It doesn’t mention whether the information collected will constitute an approximate centroid of
the cemeteries or actual boundary location data. If the latter is the case, this would be
considered boundary surveying by the WVSPS and probably the WVBPS and not covered under
the government exemption above.
It says this data will provided to another agency Historic Preservation Section of the Department
of Culture and History, a separate state agency. This we see as constituting providing a
surveying service to others. This has been the main benchmark for determining what constitutes
the practice of surveying. The WVBPS maintains, as does the WVSPS, that if you perform a
surveying service for others you’re practicing surveying and therefore need a license or a
licensee in direct supervision under the law.
Lastly, it doesn’t say what will be done with this data or how it may be used or relied on, or by
whom, in the future. Will it come to be considered authoritative data at some time in the
future?
There may be others but these are some I recall discussing with members during the legislative
session last year.
As you know the WVSPS has recognized the NCEES model rules section 210.25 Inclusions and
Exclusions of Surveying Practice. Considering the concepts outlined therein we feel the proposed
HB2957 is probably intended to fall into one of the categories excluded under the model rules.
This is not clear, however, from the language in the bill as proposed in the committee substitute.
If this could be made clear in the language of the bill I am sure the WVSPS would not only refrain
from opposing this bill but would be willing to actively support it. We, too, can see the obvious
multifaceted benefits to society of having a database with such information. It would be very
beneficial to us as surveyors as well.
I have drafted a proposed revision to the committee substitute for last year’s HB2957 which I
believe would address the concerns of the WVSPS and would not negatively affect the spirit of
the bill in any way. Please review my proposed language, shown in red below, and let me know
what you think. I would hope the WVAGP could agree with this proposal and both our
organizations could support this bill and get it passed next year.
(b) The cooperative extension service of West Virginia University shall develop a
program to collect the name and longitudinal and latitudinal data of all cemeteries within
West Virginia, including those cemeteries otherwise referenced in section six, article
five-a, chapter thirty-five of this code. The program may then be implemented by county
cooperative extension service committees. Once implemented, extension workers,
along with members of local 4-H organizations, shall collect data with global positioning
system devices,or other appropriate methods, and provide said data to the Director of
the Historic Preservation Section of the Division of Culture and History, which shall
serve as a repository for the information. It is the intent of the legislature that data
collected under this program are not intended to be used as a survey product, nor
intended to indicate the authoritative location of cemetery or property boundaries.
Please feel free to contact me if you have any questions or wish to discuss this matter further.
John L. Green
Member, WVSPS Legislative Committee