New laws concerning the practice of geology have been adopted as a part of Title VIII, Article 145 of the New York Education Law (EL) and Articles XII and XIII of the New York Limited Liability Company Law (LLCL). While the new rules generally came into effect as of Nov. 21, 2016, most of the geology provisions did not become effective until as of March 1, 2018. Until then, the profession of geology was generally unrestricted in New York, but with the new rules, subject to a few transition exceptions, the practice of geology will be restricted in a manner similar to engineering, land surveying, architecture, and landscape architecture in New York. For instance, pursuant to the new EL §7204-b, the practice of geology and the use of the title “professional geologist” in New York will be limited to those who are licensed in New York to provide geology services or otherwise specifically authorized under the EL.
Definition of the Practice of Geology
Effective Nov. 21, 2016, EL §7204-a defines the “profession of geology” broadly as follows:
The practice of the profession of geology is defined as performing professional service such as researching, investigating, consulting and geological mapping, describing the natural processes that act upon the earth’s materials, predicting the probable occurrence of natural resources, predicting and locating natural or human-induced phenomena which may be useful or hazardous to humankind and recognizing, determining and evaluating geological factors, and the inspection and performance of geological work and the responsible supervision thereof in furtherance of the health, safety and welfare of the public; provided, however, that geological mapping shall not include the practice of land surveying as defined in section seventy-two hundred three of this article.
Individual Licensing Qualification, Seal, and Continuing Education Requirements
Since Nov. 21, 2016, pursuant to EL §7206-b, to become a licensed professional geologist in New York, an applicant must meet the following professional requirements:
(i) A bachelor’s (or higher) degree in geological sciences, obtained in accordance with New York regulations;
(ii) five years of practical experience (a graduate degree may count for up to one year) in the “appropriate” geological work, as determined by the licensing board; and
(iii) pass a board exam satisfactory to the board.
Instead of a bachelor’s degree and five years of experience, a candidate may sit for the exam based on 12 years of experience.
The new rules contain a now expired grace period that allowed candidates who met the education requirements and had five years of experience to apply for and obtain a license without sitting for or passing the exam.
Out-of-state geologists, who are licensed in their home states and don’t have an established place of business in New York, may also be able to obtain a project specific temporary license.
EL §7209(1) adds provisions concerning the requirement of and use of seals for geologists, and EL §7209(2)(b) expressly allows geological drawings and reports to be sealed either by a geologist or by an engineer.
The new rules, contrary to the rules for other design professionals, do not contain continuing education requirements for geologists.
Exempted Activities and Persons: Engineers Providing Geology Services
The restrictions on the practice of geology have a number of important exceptions. The most important one, from an engineering perspective, applies to licensed engineers.
While New York licensed engineers may not hold themselves out as “professional geologists,” they are expressly permitted, pursuant to the EL §7208-a, to:
practice professional engineering … including the investigation, acquisition, evaluation, and interpretation of the physical and chemical properties of the soil, rock, groundwater, earth materials and data released thereto, and the performance of activities as specified in section seventy-two hundred four of this article.
(This is the section that contains the definition of “geology”.)
EL §7208-a also provides an express exemption for both individual licensed engineers and authorized professional engineering firms by stating that:
nothing in this chapter shall preclude a licensed professional engineer or authorized entity from offering to provide or providing the work enumerated in this subdivision, however categorized, on the grounds that such licensed professional engineer or authorized entity is not licensed to practice geology.
Accordingly, individual New York-licensed engineers, as well as firms licensed to offer engineering, have broad abilities to include geology services among their services, as long as they don’t claim they are “professional geologists” as defined elsewhere in EL Article 145.
Individual engineers cannot apply for nor obtain a professional geologist license without meeting the requirements specific to geologists. Likewise, engineering firms cannot obtain a “certificate of authorization” to provide professional geology services (as discussed below). However, such licenses and authorizations are not a requirement for geologists and firms, as they can offer geology services based on their engineering licenses and authorizations.
The same section also allows: (1) employment of geology interns and assistants, (2) the practice of land surveying by licensed land surveyors, (3) the execution by contractors of work prepared by licensed geologists, (4) the continued practice of geology by officers and employees of New York State who commenced such employment prior to Nov. 21, 2016, (5) research and teaching at accredited educational institutions, (6) work customarily performed by physical or natural scientists, provided the work does not include geological investigations, responsible charge of geological work, or the drawing of geological conclusions and recommendations, and (7) work customarily performed by certified well drillers.
Provision of Services by Geology, Engineering Firms
As discussed above, engineering firms are expressly authorized to provide geology services in New York.
According to EL §7209-4, geologists are allowed to form firms in the form of joint enterprises, partnerships, professional service corporations, and design professional corporations for several geologists to co-own such an enterprise. Combined practices of engineering, land surveying, geology, architecture, and landscape architecture may also be conducted in these types of firms. As long as each relevant profession is represented among the owners and management, the name of the entity may contain the titles of the professions to be practiced.
While EL §7209 does not expressly reference professional limited liability companies, §§1207 and 1301 of the LLCL expressly provide for, and the Department of Education does in fact approve, both single and mixed practice professional limited liability companies (several are listed in the electronic database maintained by the Department of Education) with several professionally licensed members. (The Office of the Professions also expressly states on its website that “[l]icensed professionals may set up a … professional service limited liability company (PLLC) … . In addition, the professions of architecture, landscape architecture, engineering, geology, and land surveying may set up a design professional services corporation” and “A professional service limited liability company may provide professional services in more than one profession.” See http://www.op.nysed.gov/corp/.)
So-called “grandfathered” engineering corporations (i.e., certain corporations that have provided engineering services in New York since April 15, 1935, or earlier and are expressly permitted to continue to do so pursuant to EL §7209-6) will also be able to offer geology services through their licensed New York engineers or geologists by virtue of the provision in EL §7208-b that allows engineering firms to provide geology services.
Pursuant to EL §7210(1), in order to provide professional geology services in New York, a firm must apply for and obtain a “certificate of authorization” to provide geology services (or have a certificate of authorization to provide engineering services) from the Department of Education. The certificate of authorization is subject to renewal every three years.
Anne-Mette Elkjaer Andersen is a partner at Holland & Knight where she works primarily in the area of M&A, corporate law, and compliance for the design professions. She may be contacted at firstname.lastname@example.org.