Maryland Attorney General Opinion 100OAG120

120 [100 Op. Att’y

NATURAL RESOURCES

FOREST CONSERVATION ACT – WHETHER LOCAL JURIS-

DICTIONS MAY ENACT PROGRAMS WITH CONSERVATION

THRESHOLDS AND REFORESTATION RATIOS THAT ARE

MORE STRINGENT THAN STATE LAW.

October 21, 2015

The Honorable Kumar P. Barve

Chair of the House Environment and

Transportation Committee

The House of Delegates of Maryland

You have asked for our opinion about the degree to which

local jurisdictions may enact forest conservation programs that are

more stringent than the Maryland Forest Conservation Act (“FCA”

or “Act”), Md. Code Ann., Nat. Res. (“NR”) §§ 5-1601 through 5-

1613. Specifically, you ask two questions:

May a local jurisdiction adopt an

ordinance under the state Forest

Conservation Act that requires no net loss

of forest from development and higher

levels of reforestation and afforestation

than under the thresholds specified in NR

§ 5-1606 or that exceed other requirements

of the Forest Conservation Act or the

Department of Natural Resources’ model

ordinance?

May a local jurisdiction adopt other more

stringent provisions in an ordinance under

the state Forest Conservation Act without

the Department of Natural Resources

requiring an explanation or justification as

to why each of that ordinance’s provisions

are more stringent than the Act or model

ordinance, including such items as greater

protection of forested stream buffers, steep

slopes, highly erodible soils, and larger

trees?

It is our understanding that the City of Annapolis is contemplating

the enactment of a forest conservation program with standards that

are more stringent than those in the Act and that its efforts are being

complicated by uncertainty on these questions.

Gen. 120] 121

In our opinion, local jurisdictions may enact forest

conservation programs with requirements and standards that are

more stringent than those set forth in the Forest Conservation Act.

Accordingly, local jurisdictions may require development projects

to meet a “no net loss” requirement and levels of reforestation and

afforestation that are more protective than the standards and

requirements set forth in the state law. If a local government elects

to do so, it is not required to justify the greater level of protection,

but the Department of Natural Resources (“DNR” or “the

Department”) may require the local jurisdiction to explain how its

program is consistent with the intent, requirements, and standards

of the Act.

I

Background

A. The Forest Conservation Act Statutory Scheme

The Forest Conservation Act provides minimum

requirements for forest conservation that apply when someone

develops land in Maryland. See generally 77 Opinions of the

Attorney General 127 (1992) (describing statute); 86 Opinions of

the Attorney General 72 (2001) (same). Subject to several

enumerated exceptions, the Act applies to any project involving the

development of 40,000 square feet or more that requires a

subdivision plan, grading permit, or sediment control permit. NR

§ 5-1602(a). The Act delegates primary responsibility for

implementation to the localities; each unit of local government with

planning and zoning authority is charged with applying the Act to

projects requiring local development approval.1 To carry out that

responsibility, local governments must “develop a local

conservation program, consistent with the intent, requirements, and

standards of” the Act and submit that program to DNR for its

review and approval. NR § 5-1603(a), (b); see 77 Opinions of the

Attorney General 127 (concluding that adoption of a forest

conservation program is mandatory for local jurisdictions). Local

1

The Act does not apply in a county that “has and maintains 200,000

acres or more of its land area in forest cover.” NR § 5-1602(b)(10).

When the statute was enacted, only Allegany and Garrett counties met

the terms of the exemption. 86 Opinions of the Attorney General at 76.

It is our understanding that those two counties remain exempt today.

122 [100 Op. Att’y

programs must “meet[]” or be “more stringent than the

requirements and standards of [the Act].” NR § 5-1603(a)(2), (c).2

The Act establishes a basic framework for determining how

many trees must be retained, and how many may be removed, in

connection with a land-development project. First, the law requires

the applicant to submit a forest stand delineation. The delineation

is prepared by a qualified professional and includes a map

indicating the species, location, and size of the trees on the property

and the dominant and codominant forest types. NR §§ 5-1601(p),

5-1604. Next, upon notice from the approving authority that the

forest stand delineation is complete and correct, the applicant must

submit a forest conservation plan. NR § 5-1605(a). This plan,

again prepared by a qualified professional, must include a visual

depiction of the forest conservation to be provided on the site,

including areas where existing forest will be retained; areas where

afforestation (planting in areas where there are presently no trees)

is planned; an afforestation and reforestation plan with a timetable

and description of the necessary site preparation; and a binding 2-

year management plan detailing how afforested and reforested

areas will be maintained. NR § 5-1605(b), (c). The applicant must

obtain approval of the plan from the relevant agency before a

subdivision plan or grading or sediment control permit may be

approved or issued. NR § 5-1608.

In addition to its planning requirements, the Act also includes

substantive afforestation provisions that require the landowner to

plant trees in areas where none existed. See NR § 5-1606(a). The

afforestation requirements vary with the land use category of the

property. For example, lands zoned agricultural must be planted

with trees sufficient to achieve 20% tree cover; lands zoned

commercial must achieve 15% cover. NR § 5-1606(a)(1), (2). The

Act also establishes reforestation requirements for all land use

categories based on certain “conservation thresholds.” NR § 5-

1606(b). The conservation thresholds are defined as “the

percentage of the net tract area at which the reforestation

requirement increases from a ratio of ¼ acre planted for each acre

removed, to a ratio of 2 acres planted for each acre removed.” Id.

As with afforestation, the reforestation requirements vary by land

use category: for agricultural lands, the more aggressive

requirements kick in once 50% of the tract is developed, whereas

2

The Department is required to implement a State forest

conservation program for State projects and in covered jurisdictions

where there is no local plan in effect. See NR § 5-1603(d); COMAR

08.19.04.01A.

Gen. 120] 123

for commercial areas, those requirements kick in at 15%. NR § 5-

1606(c). Each acre of forest retained above the threshold is

credited against the total number of acres to be reforested. NR § 5-

1606(d)(2). All afforestation and reforestation must be completed

within one year or two growing seasons after completion of the

development project. NR § 5-1606(a)(4), (f)(1).

Although the Act includes these basic substantive

requirements, it generally leaves to the local jurisdictions (or the

Department, with respect to developments that fall within the

State’s limited jurisdiction) the task of spelling out the details of

how those requirements must be satisfied under their respective

plans. For example, the Act sets forth a preferred sequence for

afforestation and reforestation that looks first to on-site plantings,

then plantings at other approved sites, and, when all other options

are exhausted, payment to the State or local Forest Conservation

Fund. NR §§ 5-1607(a), 5-1606(f)(2). The determination of how

to apply that sequence, however, is made by the local authority.

NR § 5-1607(a). Similarly, the details of how to carry out the

Act’s afforestation and reforestation requirements are left to the

local authority to determine using certain methods enumerated

in the statute. NR § 5-1607(b). The Act also leaves it to

the local authority to develop provisions for preserving certain

areas that are considered priorities for retention and

protection. NR § 5-1607(e)(1).

B. Implementation of the Forest Conservation Act’s

Requirements

The Forest Conservation Act was enacted in 1991 and became

effective on July 1, 1991. See 1991 Md. Laws, ch. 255. The

Department was directed to adopt regulations, including a technical

guidance manual and a model ordinance, by December 31, 1991.

NR § 5-1609. Thereafter, all units of government with planning

and zoning approval had to submit a proposed forest conservation

program to the Department by April 30, 1992. NR § 5-1603(a)(2).

Following DNR approval of the proposed program, each such unit

was directed to formally adopt the program and submit its adopted

program to the Department by December 31, 1992. NR § 5-

1603(b). The Department has continuing review authority over

local programs and is directed to conduct biennial reviews of each

authority’s program. NR § 5-1603(e).

The initial deadlines for implementing the Act’s requirements

were tight. In late 1991, with input from stakeholders, including

124 [100 Op. Att’y

local governments and the building industry, the Department

promulgated regulations and a model ordinance, which became

effective on January 20, 1992. 19:1 Md. Reg. 24 (1992); see

COMAR 08.19.01-.06. Given the time constraints for adoption of

local ordinances, most counties and municipalities initially adopted

the model ordinance with minimal changes.

Since its enactment, the Act has been amended several times,

and the Department has updated its regulations and model

ordinance to reflect those statutory changes. Local governments,

in turn, have revisited their local ordinances and, in the process of

amending their ordinances, some have sought to deviate from the

model ordinance and statutory requirements in an effort to protect

more forested land. In reviewing these proposed differences, DNR

has acknowledged that a local government may develop a program

that is more stringent than the requirements and standards of the

statute. For example, the Department has apparently approved

broader criteria for plants and areas considered priority for

retention, more explicit criteria for removal of priority forest, and

more restrictive standards for the location of afforestation and

reforestation.

It is our understanding, however, that the Department has

informed local jurisdictions on at least two occasions that they may

not establish conservation thresholds or reforestation ratios that

vary from those set forth in the Act. The Department has also

recently made its interpretation known to an environmental

advocacy group that had inquired about the status of the City of

Annapolis’s local program. See Letter from Mark J. Belton, DNR

Secretary, to Alison Prost, Chesapeake Bay Foundation (July 2,

2015) (stating that “the Forest Conservation Act does allow or

enable local jurisdictions to craft forest conservation ordinances

that include components that are more stringent than the statute,”

but that such components “may not alter the [conservation]

thresholds and [reforestation] ratios established by [§] 5-1606”).

II

Analysis

A. A Local Program May Impose a No Net Loss Policy and

Other Forest Conservation Measures that Are More

Stringent than the Act’s Requirements.

The extent to which local jurisdictions may enact forest

conservation programs that are more stringent than State law is a

matter of statutory construction. When construing statutes, we

Gen. 120] 125

follow familiar rules. As the Court of Appeals has explained, the

“cardinal rule of statutory interpretation is to ascertain and

effectuate the intent of the Legislature.” Stickley v. State Farm

Fire & Cas. Co., 431 Md. 347, 358 (2013) (internal quotation

marks omitted). Statutory construction “begins with the plain

language of the statute,” but considers that language within the

context of the larger statutory scheme, for even “the plainest

language is controlled by the context in which it appears.”

Id. at 358-59 (internal quotation marks omitted). Furthermore,

“[w]ords may not be added to, or removed from, an unambiguous

statute in order to give it a meaning not reflected by the words the

Legislature chose to use . . . .” Smack v. Dep’t of Health and

Mental Hygiene, 378 Md. 298, 305 (2003).

The interpretation of the statute by the agency charged with

applying it is entitled to “a certain amount of deference,” Motor

Vehicle Admin. v. Salop, 439 Md. 410, 421 (2014) (internal

quotation marks omitted), with the weight to be accorded that

interpretation dependent upon a number of considerations,

including the extent to which the interpretation is contemporaneous

and has been applied “consistently and for a long period of time,”

Baltimore Gas & Elec. Co. v. Pub. Serv. Comm’n of Md., 305 Md.

145, 161 (1986). Also, the “nature of the process through which

the agency arrived at its interpretation is a relevant consideration”;

courts will give “little weight” to an agency interpretation that “is

the product of neither contested adversarial proceedings nor formal

rule promulgation.” Id. at 161-62. Finally, “[a]n administrative

agency’s construction of the statute is not entitled to deference . . .

when it conflicts with the unambiguous statutory language.”

Marriott Employees Fed. Credit Union v. Motor Vehicle Admin.,

346 Md. 437, 446 (1997). With these and other canons of statutory

interpretation in mind, we now turn to the statute at hand.

1. The Forest Conservation Act Allows Local

Jurisdictions to Adopt Local Programs with

Requirements that are More Stringent than State

Law.

The plain language of the Forest Conservation Act seems

clear: Each local government unit with planning and zoning

authority must develop and adopt a local forest conservation

program that “meets or is more stringent than the requirements and

standards of this subtitle.” NR § 5-1603(a)(2) (emphasis added);

see also NR § 5-1603(c) (same). In authorizing greater stringency,

§ 5-1603 does not specify any particular “requirement” or

126 [100 Op. Att’y

“standard” or any particular part of a local program; it simply refers

to the “requirements and standards” of the Act. In the absence of a

definition of “requirements and standards” that limits those terms

to particular aspects of the statute, this provision would seem to

cover all of the statutory provisions that govern the preservation

and augmentation of forest cover. Under the plain language, then,

local programs may include requirements and standards that are

more stringent than those set forth in the Act.

As it explains in its July 2015 letter, the Department has

interpreted the statute somewhat differently. It reads the “more

stringent than” language of § 5-1603 as inapplicable to the

“conservation thresholds” set forth in § 5-1606. The Department’s

reading rests primarily on the fact that § 5-1606, unlike other

provisions of the Act, does not explicitly leave it to the State or

local authority to establish the requirements that govern the forest

conservation process. For instance, § 5-1607(b) provides that the

standards for meeting afforestation or reforestation requirements

“shall be established by the State or local program” using certain

methods set out in the statute. Section 5-1607(a) provides the same

for the preferred “sequence for afforestation and reforestation.”

Section 5-1606, by contrast, simply states what the amount of

forest cover “shall be,” declares that “[t]here is a forest

conservation threshold established for all land use categories,” and

then defines what the forest conservation threshold “means.” NR

§ 5-1606(a)(1), (b).

For several reasons, we conclude that the Department’s

interpretation is inconsistent with the plain language of § 5-1603,

and that the conservation thresholds qualify as “requirements and

standards” with respect to which a local jurisdiction may be stricter

than the Act. First of all, in terms of nomenclature, we see no

indication that the General Assembly intended to use the word

“threshold” in § 5-1606 as a way of distinguishing it from the Act’s

other “requirements” and “standards.” The conservation

thresholds are themselves only a means of calculating the

reforestation requirement for a particular project; they have no

separate function, and thus no meaning, outside of that context. See

NR § 5-1606(b) (“The forest conservation threshold means the

percentage of the net tract area at which the reforestation

requirement changes from a ratio of ¼ acre planted for every 1 acre

removed to a ratio of 2 acres planted for every 1 acre removed.”

(emphasis added)). The conservation thresholds thus are merely

part of a requirement that local jurisdictions may choose to make

more stringent. See NR § 5-1610(f)(2), (i)(2) (referring to

“afforestation or reforestation requirements”). Although the

Gen. 120] 127

thresholds themselves do not require landowners to do anything,

they provide the standard for applying the statute’s reforestation

requirement in any given situation. Either way, the thresholds

operate as “requirements” or “standards” that the State and local

programs must incorporate. In sum, we see no reason, based on the

terms used in the Act, to consider the conservation thresholds as

anything other than part of the Act’s “requirements” or

“standards.”

Furthermore, the General Assembly’s use of the terms

“requirements” and “standards” throughout the Act indicates that

the two terms were meant to cover all aspects of the forest

conservation program. For example, the statute provides that “[a]

unit of local government having planning and zoning authority

shall develop a local forest conservation program, consistent with

the intent, requirements, and standards of this subtitle.” NR § 5-

1603(a)(1). If the conservation “thresholds” did not qualify as

“standards” or “requirements,” then local programs would not have

to be consistent with those thresholds. That result would be

inconsistent with legislative intent and the agency’s practice.

Similarly, the General Assembly directed the Department to

prepare guidance manuals to assist local programs in carrying out

the Act’s requirements, NR § 5-1609(a)(1), and specified that “[a]ll

provisions of the guidance manual that are not specifically noted as

standards or minimum requirements shall be deemed

recommendations by the Department for the development of the

local program,” NR § 5-1609(a)(2). The statute thus contemplates

that the Department’s guidance would cover two different things:

“recommendations,” which local programs may choose to

incorporate into their programs, and “standards” or “minimum

requirements,” which the local programs must adopt. The statute

does not contemplate a third category of conservation “thresholds”

that, unlike “standards” or “requirements,” a local program must

adopt and yet may not exceed.

We recognize, as the Department has pointed out, that the

statute authoritatively states that “‘[t]here is a forest conservation

threshold established for all land use categories,’ NR § 5-1606(b),

and that a forest conservation plan ‘shall provide for reforestation

. . . according to the formula set forth in subsection (b) of this

section,’ NR 5-1606(c).” Belton Letter at 1 (emphasis in original).

The language the Department emphasizes is clearly the language

of requirement and, as applied to the Department, it operates as

such. When called upon to implement a forest conservation

program with respect to State projects and in local jurisdictions that

128 [100 Op. Att’y

do not have an approved program in place, the Department may not

stray from the conservation thresholds established in the Act. But

local jurisdictions are specifically authorized to enact their own

programs with provisions that are more stringent than the

“requirements” of the Act, and nothing in § 5-1606 alters or calls

into question that specific grant of authority.

Moving beyond terminology to substance, reading the

statutory phrase “requirements and standards” to exclude the

conservation thresholds would dramatically reduce the efficacy of

the local programs’ authority. As its name suggests, the purpose of

the Forest Conservation Act is to conserve Maryland’s remaining

forests, a goal that the Act accomplishes principally through its

afforestation and reforestation requirements. Those requirements

are the heart of the statute’s regulatory charge. If local jurisdictions

are unable to enact programs that are more stringent with respect

to those requirements, then the scope of § 5-1603 is diminished

substantially.

Moreover, the types of regulatory decisions with respect to

which the Department has traditionally allowed local jurisdictions

to be more stringent than State law—things like more restrictive

standards for acceptable planting stock or location of afforestation

and reforestation—are already expressly left to the local

jurisdictions to determine. See, e.g., NR § 5-1607(a)(4) (allowing

local jurisdictions to permit an alternative sequence for

afforestation or reforestation “if necessary to achieve the objectives

of a local jurisdiction’s land use plans or policies or to take

advantage of opportunities to consolidate forest conservation

efforts”); § 5-1607(b) (“Standards for meeting afforestation or

reforestation requirements shall be established by the State or local

program . . . .”). The Department’s interpretation thus tends to read

§ 5-1603’s grant of power to localities to enact more stringent

requirements out of existence, an interpretive result the Court of

Appeals cautions against. See Anderson v. Council of Unit Owners

of Gables on Tuckerman Condo., 404 Md. 560, 571 (2008) (noting

that an interpretation must “ensure that no word, clause, sentence

or phrase is rendered surplusage, superfluous, meaningless or

nugatory” (internal quotation marks omitted)).

We also cannot square the Department’s interpretation with

our prior opinions on the Forest Conservation Act. Those opinions

reflect that the essential purpose of the Act is to prompt local

governments to enact local programs that protect and grow the

State’s forest cover through conservation, afforestation, and

reforestation. As Attorney General Curran previously opined,

“[t]he Forest Conservation Act reflects a legislative judgment that

Gen. 120] 129

the forest conservation program is best implemented and

administered at the local level.” 77 Opinions of the Attorney

General at 129. By contrast, the State’s program is a “limited,

interstitial one,” designed only as a “back-up” should a local

jurisdiction fail to adopt an approvable program. Id. at 131-32.

Excluding the conservation “thresholds” from the scope of § 5-

1603(a) would lock local programs into the State requirements in a

way that seems out-of-step with that legislative design.

Limiting the local jurisdictions’ ability to enact more stringent

forest conservation measures also seems inconsistent with the

statutory provisions that grant those jurisdictions planning and

zoning authority in the first place. Those provisions require charter

counties, and non-charter counties and municipalities, to include

within their comprehensive plans the “visions” set forth in § 1-201

of the Land Use Article and certain planning “elements,” including

“a sensitive areas element.” Md. Code Ann., Land Use (“LU”)

§§ 1-406, 3-102. The “visions” set forth in § 1-201 include one for

“resource conservation,” so that “waterways, forests, agricultural

areas, open space, natural systems, and scenic areas are

conserved.” LU § 1-201(10) (emphasis added). “Sensitive area

elements” must “include the goals, objectives, principles, policies,

and standards designed to protect sensitive areas from the adverse

effects of development,” LU §§ 1-408(a), 3-104(a), and “sensitive

areas,” in turn, are defined to include “agricultural or forest land

intended for resource protection or conservation,” LU § 1-101(o)

(emphasis added). These provisions thus contemplate that local

jurisdictions might include forest conservation measures within

their comprehensive plans. And, when any local law or regulation

adopted under the planning and zoning division of the Land Use

Article conflicts with any other statute, local law, or other

regulation, the provision that “imposes a more restrictive standard”

controls. LU § 1-202(a), (b). The Land Use Article thus

specifically allows local jurisdictions, in the exercise of their

planning and zoning powers, to enact land use standards that are

more stringent than those provided in State law. We see no reason

to believe that the General Assembly, in requiring local

jurisdictions to adopt forest conservation measures, intended to

limit their traditional planning and zoning power with regard to

those natural resources.

Although we conclude that the language of the Forest

Conservation Act unambiguously allows local jurisdictions to

adopt forest conservation measures that are more stringent than

State law, we also consider the Act’s legislative history because the

130 [100 Op. Att’y

Department has suggested that it supports a contrary reading. The

Department focuses on the fact that legislative findings declaring a

“no net loss” policy were stripped from the bill, and that § 5-1606

was amended to change the afforestation requirement from “up to

a minimum of 20%” to simply “up to 20%,” suggesting that the

afforestation requirements were not intended to serve as a floor

only. See 1991 Md. Laws, ch. 255 (reflecting changes to bill,

including § 5-1606(a), (b)).

Neither of these alterations in the bill’s provisions bears on

whether local governments may enact more stringent programs on

their own. The deletion of the legislative findings discussing a “no

net loss” policy suggests that the Legislature may have backed

away from adopting a formal statewide policy, but it says nothing

about the scope of local authority. Nor does the deletion of the

phrase “a minimum of” from § 5-1606 address local authority.

That deletion was part of a larger revision of the section that

changed an across-the-board 20% afforestation requirement to the

current two-tiered requirement of 20% afforestation for certain

types of land, and 15% for others. See NR § 5-1606(a)(1), (2);

1991 Md. Laws, ch. 255 (reflecting changes to § 5-1606(a), (b)).

The deletion of the “a minimum of” language might simply have

reflected the fact that 20% was no longer the minimum

afforestation requirement.

We find more compelling the absence of any indication in the

legislative history that legislators or stakeholders believed that the

conservation thresholds were excluded from the scope of the “more

stringent” savings clause. To the contrary, what little there is on

that clause describes it broadly enough to include conservation

thresholds. See, e.g., 1991 Leg., Reg. Sess., Senate Economic and

Environmental Affairs Committee., S.B. 224, Floor Report at 1

(“Local governments must develop a local forest conservation

program that meets or exceeds the State Program . . . .”); id., Bill

Analysis at 1 (stating that the bill would require local governments

to submit “a forest conservation program which is equivalent to, or

more stringent than, the provisions contained in the bill”); House

Environmental Matters Committee, S.B. 224, Bill Analysis at 1

(“Localities must adopt forest conservation programs that meet or

exceed State standards, following guidelines and criteria

established in the bill.”); see also DNR, S.B. 224 Bill Report at 2

(Jan. 29, 1991) (stating that local jurisdictions would have to

develop programs “with standards at least as stringent as those set

forth in the law”). In the months following enactment of the

legislation, the Chairman of the House Environmental Matters

Committee wrote to our Office objecting to the Department’s

Gen. 120] 131

overzealous implementation of the Act in some respects, but had

this to say about § 5-1603: “By December 31, 1992, local

jurisdictions must submit adopted local programs at least as

stringent as the Act to the Department.” Letter from Del. Ronald

A. Guns to Judson P. Garrett, Jr., Deputy Attorney General at 4

(Sept. 12, 1991) (emphasis added). Rather than exclude

conservation thresholds from the scope of the “more stringent”

clause, all of these descriptions read the clause broadly to allow

local jurisdictions to be more stringent with respect to any aspect

of the Act.3

In reaching this conclusion, we are mindful of the fact that the

Department, in two instances described to us, has informed local

jurisdictions that they could not adopt conservation thresholds

different from those set forth in the Act. The Department’s actions

in those two instances, however, apparently did not amount to

program denials or any other type of formal agency action. Instead,

we are told, the agency expressed its view in informal comments

on local program submittals and without elaborating on the

interpretive grounds for its comment.4 And while Secretary

Belton’s recent letter indicates that the Department’s interpretation

is contemporaneous and long-held, ultimately that interpretation

must yield to the unambiguous language of the Act. Marriott

Employees, 346 Md. at 446 (“An administrative agency’s

construction of the statute is not entitled to deference, however,

when it conflicts with the unambiguous statutory language.”). As

we conclude above, the Act unambiguously allows local

3

The fiscal and policy notes accompanying subsequent amendments

to the Act similarly give the savings provision a broad construction. See

2009 Reg. Sess., S.B. 666, Revised Fiscal and Policy Note at 4 (“Enacted

in 1991, the Forest Conservation Act provides a set of minimum

standards that developers must follow when designing a new project that

affects forest land. Local governments are responsible for making sure

these standards are met, but they may choose to implement even more

stringent criteria.”); 2013 Reg. Sess., H.B. 706, Revised Fiscal and

Policy Note at 2 (same).

4

An agency interpretation that is adopted outside of a contested case

hearing or a formal rule promulgation is entitled to a somewhat lesser

degree of deference because it is untested by the administrative and

legislative review that those proceedings involve. See, e.g., Evans v.

State, 396 Md. 256, 348 (2006) (discussing the importance of AELR

Committee review for purposes of determining whether a proposed

regulation complies with the legislative intent of the statute under which

it is to be promulgated).

132 [100 Op. Att’y

jurisdictions to enact forest conservation programs with

“requirements and standards” that are more stringent than those set

forth in the Act, and there is nothing in the Act or its legislative

history that excludes conservation thresholds and reforestation

ratios from that grant of authority.

In sum, we see nothing in the statute or legislative history

indicating that the General Assembly understood the conservation

thresholds to be something other than “standards or requirements”

or that localities were not permitted to adopt more stringent

thresholds. The words of § 5-1603, “construed according to their

common and everyday meaning, are clear and unambiguous and

express a plain meaning.” Montgomery County v. Fraternal Order

of Police, Montgomery County Lodge 35, Inc., 427 Md. 561, 572

(2012) (internal quotation marks omitted). We thus give effect to

the statute as it is written and reiterate our conclusion from 2001:

“Local governments with planning and zoning authority are

required to develop local forest conservation programs that meet or

exceed standards”—all standards—“under the Act.” 86 Opinions

of the Attorney General at 75.5

2. The Forest Conservation Act Allows, But Does Not

Require, a Local Jurisdiction to Adopt a Local

Program Reflecting a “No Net Loss” of Forest.

As discussed above, the bill that became the Forest

Conservation Act originally included a legislative finding that

would have established the “no net loss” of forest as statewide

policy:

It is the intent of the General Assembly that

this Forest Conservation Act is to be

implemented and coordinated with other State

and local conservation, reforestation, and

afforestation programs, statutes, and

regulations as one part of a comprehensive

strategy to achieve no net loss of forest cover

in the State of Maryland.

1991 Md. Laws, ch. 255 (reflecting language deleted from § 5-

1602). The deletion of this (and every other) finding might weigh

against reading the statute to allow local jurisdictions to adopt a

5

Local programs may also be more stringent than the Department’s

model ordinance, which is designed to mirror the requirements of the

statute. See NR § 5-1609(a)(1)(ii).

Gen. 120] 133

“no net loss” policy on its own, but not necessarily so. There is a

difference between declaring a statewide “no net loss” policy and

allowing a local jurisdiction to adopt such a policy to guide its own

land use and development processes. Rejecting the first does not

imply rejection of the second. We find it more significant that the

Legislature left in place the language authorizing a local

jurisdiction to enact local programs that are more stringent than the

State law. If the State law does not provide for no net loss, there is

nothing in the Act that prevents a local jurisdiction from doing so.

Furthermore, the deletion of the “no net loss” finding was

not the end of legislative action on the issue; the General Assembly

has since officially declared that State policy is to achieve no net

loss of forest. In 2009, the General Assembly directed the

Department to cooperate with forestry-related stakeholder groups

to “determine the meaning of no net loss of forest for the purposes

of any state policy” and “develop proposals for the creation of a

policy of no net loss of forest in the State.” 2009 Md. Laws, ch.

298 (codified at NR § 5-104(a)). The Department’s subsequent

report supported the DNR Sustainable Forestry Council’s

recommendation that the State implement initiatives that ensure

that 40% of all land is covered by forest by 2020. See 2013 Reg.

Sess., H.B. 706, Revised Fiscal and Policy Note. Based on that

recommendation, the Legislature enacted the Forest Preservation

Act of 2013.

The Forest Preservation Act declares it to be State policy “to

encourage the retention and sustainable management of forest

lands by . . . [a]chieving no net loss of forest.” NR § 5-102(b)(1);

see also NR § 5-101(i) (defining “no net loss of forest” to mean

“40% of all land in Maryland is covered by tree canopy”). The bill

also makes various changes aimed at preserving forest land in the

State. It focuses on protecting forests through planning,

encouraging private forest management through expanded tax

credits, increasing flexibility in reforestation efforts, increasing

forest fire responsibility, and improving compliance with the

earlier Forest Conservation Act.

The 2013 legislation does not speak to the stringency of the

requirements or standards that a local jurisdiction may include

within its forest conservation program. Nor does it compel or

recommend that a local jurisdiction seek to achieve “no net loss”

on a programmatic or project-by-project basis. But it removes any

possible implication that might have been created by the

Legislature’s deletion of the “no net loss” finding in 1991. Given

134 [100 Op. Att’y

that Maryland law now affirmatively “encourage[s]” a no net loss

of forest, NR § 5-102(b)(1), we conclude that a local jurisdiction

may enact a local forest conservation program that embodies a “no

net loss” policy.

B. A Local Jurisdiction Need Not Justify Its Decision to Enact

a Program that Is More Stringent than the Forest

Conservation Act, but the Department May Inquire into

Whether the Local Program Is Consistent with, and Meets

or is More Stringent than, the Requirements of the Act.

Your last question asks whether the Department may require

a jurisdiction to justify its decision to enact a local program that is

more stringent than the Forest Conservation Act or the DNR

regulations or model ordinance that implement it. Where the

requirement clearly meets and is simply more stringent than a

corresponding State requirement, the answer is no and the inquiry

ends there. A local jurisdiction need not justify its choice to adopt

a program that is more stringent than State law.

But it is not always this straightforward; a jurisdiction might

start with the model ordinance, but alter many of its provisions in

a way that makes the relative stringency of the local program

difficult to determine. For example, because a local program is

designed to be implemented as part of a broader development

review process, the local government may use terminology that is

different from that used in State law. Some changes in a proposed

ordinance might appear to be more restrictive, others less so. In

order to make a determination as to whether the ordinance is

“consistent with the intent, requirements, and standards” of the Act,

NR § 5-1603(a), the Department may properly ask the local

jurisdiction to explain how different aspects of its proposed

program compare to the State law.

III

Conclusion

Local jurisdictions may enact forest conservation programs

that are more stringent than the Forest Conservation Act.

Accordingly, we conclude that a local jurisdiction, in the exercise

of its planning and zoning powers, may require that development

projects meet a “no net loss” standard of forest conservation and

provide levels of reforestation and afforestation that are more

protective of our State’s forest cover than the standards and

requirements set forth in the state law. Should a local government

elect to do so, it is not required to justify the greater level of

Gen. 120] 135

protection, but the Department may require the local jurisdiction to

explain how its program is consistent with the intent, requirements,

and standards of the Act.

Brian E. Frosh

Attorney General of Maryland

Adam D. Snyder

Chief Counsel, Opinions & Advice