Natural Resources Forest Conservation Act – Whether the Act Permits Forest Mitigation Banks that Merely Preserve Existing Forest, Rather than Create or Restore Forest

66 [105 Op. Att’y

NATURAL RESOURCES

FOREST CONSERVATION ACT – WHETHER THE ACT PERMITS

FOREST MITIGATION BANKS THAT MERELY PRESERVE

EXISTING FOREST, RATHER THAN CREATE OR RESTORE

FOREST

October 26, 2020

The Honorable Steuart Pittman

County Executive, Anne Arundel County

You have asked us a question about the provisions of the

Forest Conservation Act (the “Act”), Md. Code Ann., Nat. Res.

(“NR”) § 5-1601 et seq., that govern forest mitigation banking,

which is one of the measures that a developer may use to offset a

project’s effects on forest in the State when the developer has

exhausted all techniques for retaining forest on the project site. See

NR §§ 5-1610.1, 5-1607(a)(3)(iii). Specifically, you ask whether

the Act “allow[s] forest mitigation banks that preserve existing

forest but do not afforest or reforest.”

The Anne Arundel County Attorney has advised that, in his

view, preservation of existing forest does not meet the Act’s

definition of “forest mitigation banking,” namely, “the intentional

restoration or creation of forests undertaken expressly for the

purpose of providing credits.” Memorandum from Gregory J.

Swain, County Attorney, to Matt Johnston, Environmental Policy

Director (May 31, 2019) (quoting NR § 5-1601(o)). As a caveat

to his conclusion, however, the County Attorney noted that some

local jurisdictions seem to allow mitigation banking through the

placement of protective easements on already-existing forest

located off site and that “tree preservation in certain areas that is

directly done by a developer through acquisition of an easement

(not through a bank) is an accepted mitigation practice.” Id.

As we explain below, we agree with the County Attorney’s

conclusion that already-forested land does not qualify for treatment

as a “mitigation bank” unless the land had been intentionally

afforested or reforested for the express purpose of creating a

mitigation bank, as defined by NR § 5-1601(o). Thus, the

placement of a protective easement on already-existing forest, as

opposed to intentionally-created-or-restored forest, would not

qualify as mitigation banking under the Act.

Gen. 66] 67

As to the County Attorney’s caveat, the Act indeed permits

the acquisition of a protective easement for existing forested areas

in municipalities and certain designated areas as a forest

conservation measure. See NR § 5-1607(b)(2)(ii). However, the

Act expressly provides that a mitigation bank may not consist of

existing forest, NR § 5-1601(o), so the acquisition of such an

easement under NR § 5-1607(b)(2) is not, and cannot be, the

acquisition of a “mitigation banking” credit for purposes of that

method of offsetting a project’s impact on the forest of the State.

In other words, although the Act allows for the off-site retention of

existing forest to be used as a mitigation technique under certain

circumstances and although that technique may have elements in

common with mitigation banking, the two methods are not

interchangeable. For example, unlike mitigation banking, the

method of preserving existing forest provided for by NR § 5-

1607(b)(2) is permissible as a mitigation technique only in

municipalities with a tree management plan, existing population

centers as designated in a county’s master plan, and other

designated areas that are approved by the Department of Natural

Resources (“DNR”) as part of a local program. 1

I

Background

We have described Maryland’s statutory scheme for the

conservation, preservation, and enhancement of forests in four

earlier opinions. See 100 Opinions of the Attorney General 120

(2015) (concluding that local jurisdictions may adopt local

programs that are more stringent than those prescribed by the Act);

98 Opinions of the Attorney General 60, 79-80 (2013)

(summarizing the statutory scheme); 86 Opinions of the Attorney

General 72 (2001) (giving the history of the Act and describing the

relative roles of the State and local jurisdictions in implementing

it); 77 Opinions of the Attorney General 127 (1992) (same). In this

opinion, we will focus on the statutes and DNR regulations directly

applicable to the use of forest mitigation banks and protective

1

As is our practice with questions that may pertain to local

government matters, we circulated your request and memorandum to the

Maryland Association of Counties and the Maryland Municipal League.

Also, as with all requests for which we expect to issue an opinion, we

posted it on our website. We did not receive any comments on your

request.

68 [105 Op. Att’y

easements as measures for offsetting the impact of development on

forest cover in Maryland.

A. The Act’s Afforestation and Reforestation Provisions: The

Basic Framework for Offsetting the Effect of a Development

Project on the Forest Cover in the State

The Forest Conservation Act sets requirements designed to

mitigate the impact of development on forests in Maryland. A

developer (known under the Act as an “applicant”) who wishes to

develop a site subject to the Act must first submit to either the State

or relevant local jurisdiction (the “approving authority”) a forest

stand delineation that denotes the existing forest and other

environmental features on the site. NR § 5-1604. After that

submission is approved, see NR § 5-1604(c), the applicant must

then submit for further approval a forest conservation plan that

shows the measures that the applicant will use to offset the loss of

forest. NR § 5-1605. Your question implicates the mitigation

measures that an approving authority may allow when reviewing a

forest conservation plan.

Under the Act, a forest conservation plan must show the forest

that the applicant proposes to retain on site, the forested areas that

the applicant proposes to clear and, if “all techniques for retaining

existing forest cover on-site have been exhausted,” the particular

“afforestation or reforestation” measure or measures by which the

applicant proposes to offset the loss of trees. NR §§ 5-1605, 5-

1607; see also 98 Opinions of the Attorney General at 79-80

(explaining the Act).

“Retention,” “afforestation,” and “reforestation” are defined

terms. “Retention” means “the deliberate holding and protecting of

existing trees, shrubs, or plants on the site according to established

standards.” NR § 5-1601(hh). “Afforestation” means “the

establishment of a tree cover on an area from which it has always

or very long been absent, or the planting of open areas which are

not presently in forest cover.” NR § 5-1601(b). The most technical

term, “[r]eforestation,” means “the creation of a biological

community dominated by trees and other woody plants containing

at least 100 trees per acre with at least 50% of those trees having

the potential of attaining a 2 inch or greater diameter measured at

4.5 feet above the ground, within 7 years.” NR § 5-1601(gg)(1).

Reforestation can also include linear wooded areas under

transmission lines as well as landscaping, under an approved plan,

that “establishes a forest that is at least 35 feet wide and covering

2,500 square feet of area.” NR § 5-1601(gg)(2), (3).

Gen. 66] 69

The Act prioritizes “retention” of on-site forest when an

applicant seeks to develop land for a project subject to the Act. NR

§ 5-1607. Only when the applicant has exhausted “all techniques”

for on-site retention may “afforestation or reforestation” measures

be approved, and, even then, such measures may only be approved

in certain areas, under certain circumstances, and in the order of

priorities set by NR § 5-1607. As a general rule, that order requires

the applicant to afforest or reforest on the project site before turning

to off-site measures. 2 When off-site measures are permitted, they

“may include the use of forest mitigation banks which have been

so designated in advance by the State or local forest conservation

program which is approved by the Department.” NR § 5-

1607(a)(3)(iii).

B. Permissible Methods and Locations for Off-site

Afforestation or Reforestation

Under the statute, the “method” of off-site afforestation and

reforestation “shall be selected in accordance with subsection (b),”

and “the location shall be selected in accordance with subsection

(d)[.]” NR § 5-1607(a)(3). As to the “method[s]” of off-site

afforestation and reforestation, subsection (b) permits three:

(1) Forest creation in accordance with a forest

conservation plan using one or more of the

following:

2

That general rule has exceptions. For example, under NR § 5-

1607(a)(3)(i), the approving authority may permit “[o]ff-site

afforestation or reforestation in the same watershed or in accordance

with an approved master plan” when the applicant can meet either of two

conditions. The first condition requires the applicant to “demonstrate[]

that no reasonable on-site alternative exists.” NR § 5-1607(a)(3)(i). The

second condition requires the applicant to show not only that on-site

“priority areas for afforestation or reforestation”—such as areas adjacent

to streams, bays, and critical habitats—have been planted in accordance

with the conservation goals set forth in NR § 5-1607(d) but also that the

proposed off-site afforestation or reforestation would yield

“environmental benefits . . . [that] would exceed those derived from on-

site planting.” Id. Another exception to the general sequence is that the

approving authority “may allow an alternative sequence for a specific

project 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.” NR § 5-1607(a)(4).

70 [105 Op. Att’y

(i) Transplanted or nursery stock;

(ii) Whip and seedling stock; or

(iii) Natural regeneration . . . .

(2) The use of street trees in a municipal

corporation with a tree management plan, in

an existing population center designated in a

county master plan that has been adopted to

conform with the Economic Growth,

Resource Protection, and Planning Act of

1992, or in any other designated area

approved by the Department as part of a local

program, under criteria established by the

local program, subject to the approval of the

Department, using:

(i) Street trees as a permissible step in the

priority sequence for afforestation or

reforestation and, based on a mature canopy

coverage, may grant full credit as a mitigation

technique; and

(ii) Acquisition as a mitigation technique of

an off-site protective easement for existing

forested areas not currently protected in

perpetuity, in which case the afforestation or

reforestation credit granted may not exceed

50% of the area of forest cover protected.

(3) When all other options, both on-site and

off-site, have been exhausted, landscaping as

a mitigation technique, conducted under an

approved landscaping plan that establishes a

forest at least 35 feet wide and covering at

least 2,500 square feet of area.

NR § 5-1607(b).

As to the selection of the “location” of off-site afforestation

and reforestation, subsection (d) sets priorities that primarily

express “location” in terms of environmental features and goals,

including “[e]stablish[ing] or enhanc[ing] forest buffers” that are

adjacent to streams, bays, and critical habitats; “[e]stablish[ing] or

increas[ing] existing forested corridors” at a width to “facilitate

wildlife movement”; “[e]stablish[ing] plantings” to stabilize steep

slopes; “[e]stablish[ing] buffers . . . adjacent to highways”;

“[e]stablish[ing] forest areas adjacent to existing forests so as to

increase the overall area of contiguous forest cover”; and “[u]s[ing]

Gen. 66] 71

native plant materials . . . when appropriate.” NR § 5-1607(d).

Most of those specified areas correspond to the “sensitive area[s]”

that local jurisdictions must identify in their comprehensive plans.

See Md. Code Ann., Land Use (“LU”) § 1-101(o) (defining

“sensitive area”). 3 The Act thus directs forest creation to the areas

where forest cover would yield the most environmental benefits.

C. Mitigation Banking

Under the Act, “[o]ff-site afforestation or reforestation may

include the use of forest mitigation banks which have been so

designated in advance by the State or local forest conservation

program.” NR § 5-1607(a)(3)(iii). “Forest mitigation banking” is

defined as “the intentional restoration or creation of forests

undertaken expressly for the purpose of providing credits for

afforestation or reforestation requirements with enhanced

environmental benefits from future activities.” NR § 5-1601(o).

The Act and DNR’s regulations, including the Model Forest

Conservation Ordinance that DNR issued for local governments,

then further elaborate on the concept.

NR § 5-1610.1 sets out the broad mechanics of a mitigation

banking program. Mitigation banks are permissible only in the

priority areas listed in NR § 5-1607(d) or as identified in a local

jurisdiction’s comprehensive plan, and they may not be used to

“alter the sequence for retention, reforestation, or afforestation on

a development site” set forth in NR § 5-1607. NR § 5-1610.1(c),

(d). For example, forest mitigation bank credits may not be used

to offset loss of forest when on-site forest can be retained. NR § 5-

3

Under the Land Use Article, local jurisdictions must include a

“sensitive area element” in their comprehensive plans that includes

“standards designed to protect sensitive areas from the adverse effects of

development.” LU §§ 1-408 (generally applicable to home rule

counties), 3-104 (generally applicable to municipalities and commissioner

counties). As defined in the Land Use Article, “sensitive areas” include

five specific types of areas that overlap with the priority areas identified

in NR § 5-1607(d)—streams, wetlands, floodplains, critical wildlife

habitat, steep slopes—as well as “agricultural or forest land intended for

resource protection or conservation” and “any other area in need of

special protection, as determined in a plan.” LU § 1-101(o). Before a

local jurisdiction may adopt its comprehensive plan, DNR and the

Department of the Environment must review the proposed plan to

“determine whether [it] is consistent with the programs and goals of the

departments.” LU §§ 1-408(c), 3-104(c).

72 [105 Op. Att’y

1607(a). Credits also “may not be approved for debiting until

construction of the mitigation bank is complete,” and the mitigation

bank must “maintain sufficient credits in reserve to cover

anticipated expenses of completion of the mitigation bank.” NR

§ 5-1610.1(g). A local or State program that establishes criteria

“for the use and establishment of forest mitigation banks shall

include protection and conservation in perpetuity of forest

mitigation banks consistent with reasonable management plans,

through methods that include easements, covenants, or similar

mechanisms that shall be in place at the time credits are

withdrawn.” NR § 5-1610.1(e).

The Act further requires DNR to “develop standards and

adopt regulations for the creation and use of forest mitigation

banks, including criteria for tracking, crediting, maintaining,

bonding, and reporting mitigation bank activities.” NR § 5-

1610.1(a). DNR has done that by regulation. Under those

regulations, a person who wishes to establish a mitigation bank

must submit a forest mitigation bank plan to the approving

authority for its approval. COMAR 08.19.04.09-1A; see also

08.19.01.03B (defining a “forest mitigation bank plan” as a plan

submitted to DNR or a local government with an approved local

program). Additionally, persons seeking to create a mitigation

bank must provide DNR with a maintenance agreement, a “bond or

other alternate form of security to ensure that the trees will be cared

for and maintained for 2 years or until sufficiently established,

whichever is longer,” and “[t]he draft easement, covenants, or deed

restrictions which will be sold to the developer when credits are

withdrawn from the bank.” COMAR 08.19.04.09-1D. The “area

of land on which the bank is planted shall be a minimum of 1 acre,”

COMAR 08.19.04.09-1B, and credits may not be withdrawn “until

the trees planted in the bank have successfully survived for 2 years

from the date of planting unless the bank has planted 25 percent

more trees than is required for the project,” COMAR 08.19.04.09-

1F.

DNR’s regulations also require mitigation banks to advance

one or more of the eight “priorit[ies]” identified in NR § 5-1607(d).

See COMAR 08.19.04.09-1E (listing the priorities by reference to

particular areas, including, for example, to “[e]stablish or enhance

forest buffers adjacent to intermittent and perennial streams and

coastal bays to widths of at least 50 feet” or “[e]stablish forested

areas adjacent to existing forests to increase the overall area of

contiguous forest cover, when appropriate”). Thus, DNR’s

regulations, like the Act, direct afforestation or reforestation

Gen. 66] 73

through mitigation banking to the areas where the creation of forest

would most benefit the environment.

D. The Model Forest Conservation Ordinance

By regulation, DNR has issued a Model Forest Conservation

Ordinance (“Model Ordinance”). See COMAR 08.19.03.01. The

Model Ordinance gives local jurisdictions a template of the

minimum State standards and requirements that they must include

in their programs. It, like the statute, defines a “[f]orest mitigation

bank” as “an area of land which has been intentionally afforested

or reforested for the express purpose of providing credits for

reforestation requirements.” Id., Model Ordinance Art. II, § 2.24-

1. A “[f]orest mitigation bank agreement” means “an agreement

entered into by an individual owning a forest mitigation bank and

the Department or local government which commits the banker to

certain procedures and requirements when creating and operating

the forest mitigation bank.” Id., Model Ordinance Art. II, § 2.24-

2. Under the model language, forest mitigation banks must

“[a]fforest or reforest an area of land in accordance with a forest

mitigation agreement,” “[u]se native plant materials for

afforestation or reforestation unless inappropriate,” and “[c]ause

trees to be planted” to “establish” or “enhance” certain buffers or

“stabilize” certain slopes. Id., Model Ordinance Art. X-2,

§ 10.1.2B.

The Model Ordinance also provides language regarding the

three methods of afforestation or reforestation specified in NR § 5-

1607(b). Regarding protective easements for already-existing

forest, the Ordinance re-words § 5-1607(b) slightly. The Model

Ordinance provides:

In a municipal corporation with a tree

management plan and in an existing

population center designated in a county

master plan that has been adopted to conform

with the Economic Growth, Resource

Protection, and Planning Act of 1992, or in

any other designated area approved by the

Department, the use of:

(a) Street trees as a permissible step in the

priority sequence for afforestation or

reforestation and with a mature canopy

coverage may be granted full credit as a

mitigation technique; and

74 [105 Op. Att’y

(b) Acquisition of an off-site protection

easement on existing forested areas not

currently protected in perpetuity as a

mitigation technique, in which case the

afforestation or reforestation credit granted

may not exceed 50 percent of the area of forest

cover protected[.]

Art. IX, § 9.1A(2); see also COMAR 08.19.02.02O (elaborating on

the afforestation and reforestation methods in the statute and

allowing, in particular areas, for the “[u]se of street trees . . . or . . .

[a]cquisition of protective easements on existing forested areas” as

mitigation techniques).

II

Analysis

A. May a “Forest Mitigation Bank” Be Established from

Already-existing Forest?

In construing the Forest Conservation Act, we apply “the

standard principles of statutory construction” articulated by the

Court of Appeals:

[O]ne looks first to the text of a statute, giving

the text its ordinary meaning in context. The

plain meaning of the text may be confirmed—

or ambiguities in the text resolved—by an

examination of the legislative history and a

consideration of the consequences of

alternative interpretations. The ultimate goal

is to discern and implement the legislative

purpose without reading into the statute what

is not there and without reading out of the

statute what is.

Rodriguez v. Cooper, 458 Md. 425, 442 (2018). Thus, statutory

language is not to be read “in a vacuum.” Lockshin v. Semsker, 412

Md. 257, 275 (2010) (internal citations omitted). Instead, “the

plain language must be viewed within the context of the statutory

scheme to which it belongs, considering the purpose, aim, or policy

of the Legislature in enacting the statute.” Id. at 276.

Here, you ask whether the Act “allow[s] forest mitigation

banks that preserve existing forest but do not afforest or reforest.”

In answering that question, we start with the text of the statute. The

Gen. 66] 75

most relevant text on this point is the Act’s definition of “forest

mitigation banking” to “mean[] the intentional restoration or

creation of forests undertaken expressly for the purpose of

providing credits for afforestation or reforestation requirements

with enhanced environmental benefits from future activities.” NR

§ 5-1601(o). That text, read in accordance with its “plain

meaning,” Rodriguez, 458 Md. at 442, requires the would-be

mitigation banker to meet two requirements. First, the banker must

intend to create or restore a forest. Second, the banker must create

or restore the forest “expressly for the purpose of providing credits

for afforestation or reforestation requirements with enhanced

environmental benefits from future activities.” It thus seems clear

that a forest that already existed before its owner formed the

intention to establish a mitigation bank—and that the owner merely

intends to preserve—could not meet the definition of a “mitigation

bank.”

Nonetheless, because we are not to read statutory text in a

vacuum, see Lockshin, 412 Md. at 275-76, we will analyze the

language of NR § 5-1601(o) in the context of the statutory scheme

within which it falls to make sure that the broader context does not

create any ambiguity. We will start with the most relevant statutory

context—the mitigation banking scheme—and then look at the

statute’s legislative purpose, as discernible from the legislative

history. In the interest of completeness, we will also look at a now-

abrogated provision of the Act that is instructive on the terms used

(and not used) in NR § 5-1601(o), and, finally, at DNR’s

regulations and model ordinance.

1. The Broader Mitigation Banking Scheme

The mitigation banking scheme, set forth in NR § 5-1610.1,

reinforces our reading of “forest mitigation bank” as excluding the

mere preservation of existing forest. That section requires DNR to

adopt regulations for the “creation and use” of mitigation banks,

authorizes local jurisdictions to “develop procedures for

establishing [the banks],” provides that mitigation bank credits

“may not be approved for debiting until construction of the

mitigation bank is complete,” and requires banks to “maintain

sufficient credits in reserve to cover anticipated expenses of

completion[.]” NR § 5-1610.1. The General Assembly’s use of

the words “creation,” “establishing,” “construction,” and

“completion” confirms that mitigation banks must be made up of

76 [105 Op. Att’y

forest that is intentionally created or restored expressly to provide

credits. See NR § 5-1601(o).

2. Legislative Purpose and Legislative History

For additional context, we look next to the “purpose, aim, or

policy of the Legislature” in enacting the mitigation banking

scheme, Lockshin, 412 Md. at 276, as may be evidenced by the

legislative history, see Rodriguez, 458 Md. at 442. Those

considerations, too, confirm the Act’s plain-language requirement

that mitigation banks be forest that is intentionally created or

restored expressly for the purpose of providing credits, as opposed

to already-existing forest.

There is plenty of legislative history to consult, because the

legislation that culminated in the enactment of the forest mitigation

banking provisions was introduced in three successive years—

1994, 1995, and 1996—before its eventual enactment in 1997. The

scheme was modeled on the mitigation banking scheme for

nontidal wetlands that the General Assembly had adopted in 1993,

and it also followed the recommendations of an advisory group that

the General Assembly had created in 1993 to suggest improvements

to the Forest Conservation Act. See, e.g., Floor Report of the Senate

Econ. and Envtl. Affairs Comm. on H.B. 1124, 1994 Leg., Reg.

Sess. (explaining that the bill was “modeled on the wetlands

mitigation banks” created by the 1993 legislation and “principally

consist[ed] of” the Advisory Group’s recommendations).

We begin with the nearly contemporaneous wetlands banking

law. Maryland’s addition of mitigation banking to its nontidal

wetlands statute followed a 1990 federal memorandum of

agreement that instructed that mitigation banking could be used to

offset a project’s impact on those wetlands. See Environmental

Law Institute, Banks and Fees: The Status of Off-Site Wetland

Mitigation in the United States 13 (Sept. 2002),

https://www.eli.org/sites/default/files/eli-pubs/d12_08.pdf. The

agreement set forth a “sequence” of mitigation steps: “avoiding

impacts, minimizing impacts, rectifying impacts, reducing impacts

over time, and compensating for impacts.” Memorandum of

Agreement Between the Environmental Protection Agency and the

Department of the Army Concerning the Determination of

Mitigation Under the Clean Water Act Section 404(b)(1)

Guidelines, at 2 (1990). Under that agreement, the “[s]imple

purchase or ‘preservation’ of existing wetlands resources,” could

“in only exceptional circumstances be accepted as compensatory

mitigation.” Id. at 4.

Gen. 66] 77

Although Maryland eventually included mitigation banking

in its wetlands statute, it did not include the mere off-site

“preservation” of existing wetlands as a banking method. Rather,

Maryland’s 1993 wetlands banking law precluded the use of

existing wetlands as mitigation banks by defining “mitigation

banking” as “wetland restoration, creation, or enhancement

undertaken expressly for the purpose of providing compensation

credits for wetland losses from future activities.” 1993 Md. Laws,

ch. 347; see also Md. Code Ann., Envir. (“EN”) § 5-901(l). Thus,

in 1993, the General Assembly apparently viewed mitigation

banking as an offset measure whereby an applicant could purchase

credits in a bank of new, restored, or enhanced wetlands as a

substitute for the loss of wetlands caused by the applicant’s project,

not as a measure whereby an applicant could rely on the

preservation of existing wetlands to offset that loss.

That same year, the General Assembly made changes to the

Forest Conservation Act. As relevant here, the 1993 law created a

Forest Conservation Advisory Group to recommend further

changes before the 1994 session. 1993 Md. Laws, ch. 489. The

Advisory Group recommended that mitigation banking be added to

the Act as an offset measure and proposed the definition that, with

some changes in format, is now codified at NR § 5-1601(o): “the

intentional restoration or creation of forests undertaken expressly

for the purpose of providing credits for afforestation or

reforestation requirements with enhanced environmental benefits

from future activities.” Report of the Advisory Group on Forest

Conservation (Dec. 1, 1993) (“Advisory Group Report”) at 19. In

doing so, the Advisory Group explained that the “purpose[s]” of

mitigation banking would be the “creation of forest cover to meet

mitigation requirements in advance of impacts,” “the combination

of mitigation plantings for separate projects into a single receiving

area,” and the “encourage[ment of] the creation of new forest areas

in advance of forest removal,” particularly in environmentally

sensitive areas where the new or restored forest areas would do the

most good. Id. The Advisory Group did not propose the use of

mitigation banking credits for the mere preservation or retention of

existing forest. 4 Thus, the Advisory Group’s concept of mitigation

4

The Advisory Group’s minutes of its November 15, 1993 meeting

state that “[s]ome discussion . . . centered on the concept of banking

credit for protection of existing forested area.” Advisory Group Report,

Appendix D. However, “[n]o consensus was reached,” and the members

78 [105 Op. Att’y

banking—as a mechanism for the “restoration” or “creation” of the

natural resource in an environmentally-useful way—largely

reflected the similar concept that the General Assembly had

adopted in the wetlands banking law. See EN § 5-901(l).

The General Assembly took up the Advisory Group’s

recommendations in 1994. See H.B. 1124, 1994 Leg., Reg. Sess.

Like the Advisory Group, the General Assembly focused on the

creation and restoration of forests for mitigation banks. For

example, the Floor Report on House Bill 1124 explained that forest

mitigation banking would “allow[] forests to be created and

acreage to be held in reserve until ‘credits’ are withdrawn,

compensating for an authorized loss of forests elsewhere” and that

such banking would “reduce the impact on the State’s forests over

time by compensating for impacts through replacement or the

provision of substitute forest resources.” Floor Report for H.B.

1124, 1994 Leg., Reg. Sess. The Floor Report further explained

that the bill had been “modeled on the wetland mitigation banks

created [in 1993].” Id. The Floor Report did not mention the mere

“preservation” or “retention” of forests.

After the bill did not pass that year, similar legislation was re-

introduced every year until a bill was finally enacted in 1997. We

have examined the bill files for each of these bills, and none of the

history that we have seen suggests that the General Assembly

contemplated “retention” as a permissible form of mitigation

banking. Thus, based on what we have been able to find, the

legislative history confirms that the General Assembly did not

intend to authorize the retention of existing forest as a mitigation

banking technique.

3. The Pilot Program for Retention Banking

Also instructive is a now-abrogated provision that had created

a separate banking program for the retention of certain forested

land, because it further highlights the distinction, as understood by

the General Assembly, between the mere retention of already-

existing forest and forest created through afforestation or

“agreed to review the banking proposal in greater detail and revisit it at

the next meeting.” Id. Although various mitigation banking topics were

addressed at the next meeting, the issue of awarding credits for existing

forest apparently was not. Id., Minutes of November 22, 1993 Meeting

at 3. The Advisory Group’s final report did not include any

recommendation that existing forests should qualify for treatment as

“mitigation bank[s].”

Gen. 66] 79

reforestation. Enacted in 2002 and abrogated two years later, that

provision created a pilot program for “forest retention banks.”

2002 Md. Laws, ch. 551 (emphasis added); see also former NR § 5-

1610.2. As introduced, the bill would have amended NR § 5-

1610.1—then, as now, the mitigation banking provision—to add a

pilot program permitting landowners to bank already-existing areas

planted with funds from the federal Conservation Reserve

Enhancement Program (“CREP”). H.B. 895, 2002 Leg., Reg.

Sess. 5 More specifically, the original bill would have required

DNR to “establish a 2-year pilot program in Carroll and Frederick

Counties that allows a person to use funds from [CREP] to create a

forest mitigation bank.” Id.

At DNR’s request, however, the bill was amended to refer to

a “retention” bank instead of a “mitigation” bank and to be codified

separately from the mitigation banking provision, as NR § 5-

1610.2. See 2002 Md. Laws, ch. 551. DNR explained that the

amendments were “needed” because the proposed banking of

existing forest could not be “mitigation banking” within the Act’s

definition of the term:

The Forest Conservation Act’s forest

mitigation banking provisions specifically

allow for the intentional creation or

restoration of forests expressly for the purpose

of providing credits to meet mitigation

requirements under the Forest Conservation

Act (FCA). HB 895, as currently written,

does not meet the condition of the tree

planting occurring specifically to create a

mitigation bank.

5

CREP, a joint federal-state program, pays farmers who enroll in the

program “to voluntarily remove marginally productive and

environmentally sensitive croplands and pasturelands from production

to address targeted federal and state agricultural-related environmental

concerns.” Dep’t of Nat. Res., “Conservation Has Its Rewards – CREP,”

https://dnr.maryland.gov/wildlife/Documents/CREP_Start-to-Finish.

pdf. The goal of the program has been to enable farmers to “protect

water quality and create wildlife habitat without sacrificing income.” Id.

Maryland’s CREP targets eligible lands in the Chesapeake Bay

watershed for various measures, including restoring riparian buffers.

80 [105 Op. Att’y

DNR Bill Report on H.B. 895 (March 13, 2002). 6 Thus, in 2002,

DNR interpreted the definition of a “forest mitigation bank” to

exclude an existing forest.

Although this retention banking provision was automatically

abrogated in 2005 based on a sunset provision in the law, see 2002

Md. Laws, ch. 551, the provision informs our interpretation of NR

§ 5-1601(o) because it confirms what the definitions section of the

Act already shows: The General Assembly gave “retention” a

meaning distinct from that of “afforestation” and “reforestation.”

To include “existing forest” in the definition of “forest mitigation

banking,” we would thus have to add the word “retention” to NR

§ 5-1601(o)—a revision that would conflict with the fundamental

principle of statutory interpretation that statutes should be read as

enacted, without adding words. See Rodriguez, 458 Md. at 442.

4. DNR’s Regulations

Finally, DNR’s regulations confirm that a mitigation bank is

created only by “afforesting” or “reforesting” an area in accordance

with a plan that DNR has first approved. See COMAR

08.19.04.09-1A (“A person may create a forest mitigation bank

from which applicants may purchase credits by afforesting or

reforesting an area of land in accordance with a forest mitigation

bank plan which has been approved by the Department.”);

COMAR 08.19.02.02Q(2) (“A local program shall require a forest

mitigation bank to: (a) Afforest or reforest an area of land in

accordance with an approved forest mitigation bank agreement; . . .

and (e) Cause trees to be planted which [establish or enhance

certain forestation or stabilize steep slopes].”).

Those regulations do not provide that an existing forest may

be converted to a mitigation bank simply by retaining the forest

through an easement. To the same effect, DNR’s Model Ordinance

6

DNR further stated that the amendment to reflect “retention” would

allow the bill to “dovetail[] more closely to the existing statute that

allows for the offsite retention of existing forest (In other words, the

forested stream buffer created under CREP is considered an existing

forest).” Id. Although it is not clear exactly what DNR meant, it may be

that DNR was observing that the retention of existing CREP buffers on

agricultural lands would be more similar to the preservation of existing

forest that is allowed in municipalities and certain other designated areas

under NR § 5-1607(b)(2), which we will discuss further below, than to

the intentional afforestation or reforestation required for mitigation

banking.

Gen. 66] 81

requires mitigation banks to “[a]fforest or reforest an area of land

in accordance with a forest mitigation bank agreement,” “[u]se

native plant materials for afforestation or reforestation unless

inappropriate,” and “[c]ause trees to be planted” to “establish” or

“enhance” certain buffers or “stabilize” certain slopes. COMAR

08.19.03.01; Model Ordinance Art. X-2, § 10.1.2B. None of these

provisions refers to “retention” as a way to establish a mitigation

bank.

We thus conclude that the Act means what it says when it

defines “forest mitigation banking” to mean “the intentional

restoration or creation of forests undertaken expressly for the

purpose of providing credits for afforestation or reforestation

requirements with enhanced environmental benefits from future

activities.” NR § 5-1601(o). That definition precludes the use of

pre-existing forest for mitigation banking. Instead, to be eligible

for treatment as a “forest mitigation bank,” a forest must have been

“intentional[ly]” created or restored “expressly” for that purpose.

Id.

B. Does the Separate Statutory Authorization for the

Acquisition of a Protective Easement for Existing Forest in

Certain Areas Implicitly Permit Mitigation Banking of

Existing Forest?

The only remaining question is whether NR § 5-1607(b)(2),

which permits the use of a protective easement for existing forest

as a method for offsetting the loss of forest under certain

circumstances, authorizes the functional equivalent of mitigation

banking for existing forest. As the County Attorney has noted,

some local jurisdictions, in ordinances approved by DNR, may be

interpreting that provision to allow existing forested areas to be

treated like “mitigation banks.” 7 For the reasons explained below,

7

For example, an explanation of Montgomery County’s mitigation

banking program posted on its Planning Department’s website states:

“Banks may be created by planting a new forest or by protecting an area

where forest is already established. . . . Developers who buy credits from

a bank that protects an established forest must buy twice the mitigation

requirement shown on their forest conservation plan worksheet.”

Montgomery County Dep’t of Planning, Forest Mitigation Banks,

https://montgomeryplanning.org/planning/environment/forest-conservation-

and-trees/forest-conservation-banks/. Frederick County’s program also

seems to permit the creation of a “bank” from “existing forest.” See

82 [105 Op. Att’y

we conclude that the protective-easement method that is authorized

under NR § 5-1607(b)(2) in certain areas is distinct from mitigation

banking. Thus, although the protective-easement method might

have elements and standards in common with mitigation banking,

the elements and standards for this separate method must be

consistent with the language and purpose of NR § 5-1607(b)(2),

including that provision’s express limitation on the areas in which

the method is permissible as a mitigation technique.

Section 5-1607(b) requires programs to establish “[s]tandards

for meeting afforestation or reforestation requirements” and

requires them to use at least one of three “methods.” See Part I.B,

supra. The second permissible method is the most relevant here

because one of its elements pertains to protective easements for

existing forests. That method is:

The use of street trees in a municipal

corporation with a tree management plan, in

an existing population center designated in a

county master plan that has been adopted to

conform with the Economic Growth,

Resource Protection, and Planning Act of

1992, or in any other designated area

approved by the Department as part of a local

program, under criteria established by the

local program, subject to the approval of the

Department, using:

(i) Street trees as a permissible step in the

priority sequence for afforestation or

reforestation and, based on a mature canopy

coverage, may grant full credit as a mitigation

technique; and

(ii) Acquisition as a mitigation technique of

an off-site protective easement for existing

forested areas not currently protected in

perpetuity, in which case the afforestation or

reforestation credit granted may not exceed

50% of the area of forest cover protected.

NR § 5-1607(b)(2).

Frederick County Ordinance § 1-21-29 (“The Frederick County Forest

Banking Program allows a person to create new forest areas or designate

certain existing forest areas to be held in reserve (or ‘banked’), in order

to be used to meet future forestation requirements imposed on regulated

activities by this chapter.”).

Gen. 66] 83

As a first step, we consider what NR § 5-1607(b)(2) means.

At first glance, it seems hopelessly ambiguous; paragraph (i)

contains one verb without any subject, and the introductory clause

contains a series of nested modifying phrases without clearly

identifying the antecedent for each. But once the initial series of

prepositional phrases (all relating to the areas in which the method

is permissible) is fenced off, and once the references to the credit

formulas are recognized as parentheticals relating only to credits,

the overall structure of the provision emerges. Boiled down that

way, NR § 5-1607(b)(2) provides, in essence, for the following

method based on “standards” adopted by the local government:

The use of street trees [in certain areas] under

criteria established by the local program,

subject to the approval of the Department,

using:

(i) Street trees as a permissible step in the

priority sequence for afforestation or

reforestation [which gets full credit for

afforestation]; and

(ii) Acquisition as a mitigation technique of

an off-site protective easement for existing

forested areas not currently protected in

perpetuity, [which gets only half credit].

Id. The statute also provides that this method is only available “in

a municipal corporation with a tree management plan, in an

existing population center designated in a county master plan that

has been adopted to conform with the Economic Growth, Resource

Protection, and Planning Act of 1992, or in any other designated

area approved by the Department as part of a local program.” NR

§ 5-1607(b)(2).

Even boiled down in this way, however, there remains

ambiguity in the provision. Although subparagraph (i) means that

afforesting or reforesting using street trees will be given full credit

(if conducted in any of the permissible locations and in accordance

with the approving authority’s established standards), it is less than

clear whether the acquisition of a protective easement under

subparagraph (ii) also somehow requires “[t]he use of street trees.”

On one hand, purely as a grammatical matter, the entirety of

paragraph (b)(2), including the protective-easement provision, is

conditioned on “[t]he use of street trees.” On the other hand, the

protective-easement technique in (b)(2)(ii) allows for the acquisition

84 [105 Op. Att’y

of a protective easement “for existing forested areas,” a phrase that

seems inconsistent with “[t]he use of street trees.” NR § 5-

1607(b)(2). The term “street trees,” although not defined in the

statute, is ordinarily understood to refer to trees planted in the

narrow strip, or “tree lawn,” between a street or roadway and a

sidewalk or other infrastructure. See Dep’t of Nat. Res., State

Forest Conservation Technical Manual (3d ed. 1997) at 3-41

through 3-42 (setting the minimum widths of a tree lawn needed

for trees of various sizes). And such a “tree lawn” would not rise

to the level of a “forested area” under any ordinary understanding

of those words.

Moreover, DNR has never read the provision to require the

“use of street trees” for the protective-easement technique in

(b)(2)(ii). Instead, the agency has long read the provision as a

separate method. See COMAR 08.19.02.02O (providing in the

disjunctive for the “[u]se of street trees . . . or . . . [a]cquisition of

protective easements on existing forested areas” (emphasis

added)). Indeed, when what is now NR § 5-1607(b)(2) was

originally enacted in 1993—before the mitigation banking

provisions were enacted—it was a free-standing provision that

could not possibly have been read to condition the protective-

easement method on the use of street trees. 8 Then, as part of the

8

At the time, it provided:

In a municipal corporation with a tree

management plan, in an existing population

center designated in a county master plan that has

been adopted to conform with the Economic

Growth, Resource Protection, and Planning Act

of 1992, as enacted by chapter 437 of the Acts of

the General Assembly of 1992, or in any other

designated area approved by the Department as

part of a local program, a local program may,

subject to the approval of the Department,

establish criteria for the use of:

(i) Street trees as a permissible step in the

priority sequence for afforestation or reforestation

and, based on a mature canopy coverage, may

grant full credit as a mitigation technique; and

(ii) The acquisition of an off-site protective

easement for existing forested areas not currently

protected as a mitigation technique, but the

afforestation or reforestation credit granted may

Gen. 66] 85

same 1997 legislation that created the mitigation banking program,

NR § 5-1607(b)(2) was moved to its current location, and the

words “street trees” were added at the beginning to modify the

entire paragraph, not just (b)(2)(i). 1997 Md. Laws, ch. 559.

Because there was no explanation for that change in the legislative

history, DNR has apparently viewed the addition of the phrase

“[t]he use of street trees” at the beginning of (b)(2) as a drafting

error. The agency retained the original structure—street trees as

one option and protective easements over existing forests as

another—when it proposed regulations to update the Model

Ordinance to comply with the 1997 amendments. See 25 Md. Reg.

630 (April 10, 1998); see also 25 Md. Reg. 946 (June 15, 1998)

(adopting the proposed regulation).

Although it is generally not permissible to read language out

of a statute, Kushell v. Department of Natural Res., 385 Md. 563,

576-577 (2005), there is an exception to that general rule when the

words in question “appear to have been inserted through

inadvertence or mistake” and “are incapable of any sensible

meaning or are repugnant to the rest of the statute and tend to

nullify it,” Pressman v. State Tax Comm’n, 204 Md. 78, 88 (1954);

see also Kaczorowski v. Mayor & City Council of Baltimore, 309

Md. 505, 520 (1987) (declining to read a “drafting error to

frustrate” the Legislature’s intent). Here, given that the phrase

“[t]he use of street trees” does not appear to have any “sensible

meaning,” Pressman, 204 Md. at 88, as applied to the protective-

easement method for existing “forested areas,” we think that a court

would likely defer to DNR’s longstanding interpretation that “[t]he

use of street trees” does not modify the protective-easement

method in (b)(2)(ii).

In addition, the only legislative history that we have found on

this point supports DNR’s interpretation. In both the House and

Senate floor reports, the authorization for “street trees” and

“protective easements” as mitigation methods describes them as

separate things, despite the language in the bill adding “[t]he use of

street trees” to the beginning of (b)(2). See, e.g., Report of the

Senate Econ. and Envtl. Affairs Comm. on S.B. 33, 1997 Leg.,

not exceed 50% of the area of the forest cover

protected.

1993 Md. Laws, ch. 489. As we will explain below, this language

reflected DNR’s interpretation of the Act, as set forth in a Memorandum

of Understanding with the Maryland Municipal League in January 1993.

86 [105 Op. Att’y

Reg. Sess., at 3 (“In certain municipal areas and designated growth

areas, street trees, the acquisition of a protective easement for

existing forested areas, and certain landscaping techniques will

now be allowed under the Act.”); Report of the House Envtl.

Matters Comm. on S.B. 33, 1997 Leg., Reg. Sess., at 2 (“In

municipal areas and designated growth areas, street trees, the

acquisition of off-site easements for existing forested areas, and

certain landscaping will now be allowed under the Act.”). Thus, it

appears from the legislative history that the Legislature would have

understood the two methods as separate alternatives.

In any event, even if the protective-easement method in

(b)(2)(ii) is not limited to the “use of street trees,” that does not

mean that it authorizes the functional equivalent of mitigation

banking. Instead, we conclude from both the purpose and the

legislative history of NR § 5-1607(b)(2) that the provision neither

alters, nor even bears on, the plain meaning of the mitigation

banking provisions in NR §§ 5-1601(o) and 5-1610.1. 9 Thus, in

our view, § 5-1607(b)(2) does not authorize the owner of an

existing forest to place an easement on that forested land in order

to sell “mitigation banking” credits to developers. We reach that

conclusion for two reasons. One has to do with timing; the other

has to do with the purpose of each provision.

The timing of the two bills is particularly informative on the

General Assembly’s intent when it enacted the first version of what

is now NR § 5-1607(b)(2). The original version of NR § 5-

1607(b)(2) was enacted in 1993, four years before the Act included

mitigation banking in any form. See 1993 Md. Laws, ch. 489. The

legislative history of that original version shows that it was

primarily intended to address the difficulties local governments

were having in applying the Act’s afforestation and reforestation

requirements in municipalities, where there is little open space

available for planting, and in areas planned for cluster

development. See, e.g., Written Testimony of the Maryland

Municipal League (“MML”) on S.B. 915 (March 23, 1993)

9

Due to the COVID-19 pandemic, we have not been able to access

the recordings of the floor debates over either the 1993 legislation that

created the predecessor of NR § 5-1607(b)(2) or the 1997 legislation that

authorized mitigation banking. We therefore provide our opinion on

these matters with the caveat that there is a possibility that those floor

debates could shed additional light on the Legislature’s understanding of

these provisions.

Gen. 66] 87

(referring to municipalities’ need for guidance in applying the Act

“in the largely developed and frequently urbanized settings that are

found within municipal corporate limits”). 10

In early 1993, DNR had attempted to address those problems

and other questions about the implementation of the 1991 Act by

entering into a Memorandum of Understanding (“MOU”) with

MML. See, e.g., id.; see also Written Testimony of Maryland

Association of Counties (“MACo”) on S.B. 915 (April 1, 1993)

(describing the MOU). In the MOU, DNR “agree[d] to” five

“interpretations of the Act and its associated regulations.”

Memorandum of Understanding between Department of Natural

Resources and Maryland Municipal League (Jan. 13, 1993). As

relevant here, the first “interpretation” addressed the use of street

trees and existing forested areas “within municipal corporate

limits”:

The use of (a) off-site easements at a two-for-

one retention to clearance ratio to protect

existing forested areas, (b) street trees and (c)

on-site landscaping are acceptable steps in the

priority sequence for afforestation and

reforestation techniques used within

municipal corporate limits and use of street

trees and on-site landscaping may include full

credit as a mitigation technique based on

projected mature canopy coverage[.]

Id.

Shortly thereafter, Senate Bill 915 was introduced partly to

codify provisions of the MOU. See Written Testimony of MACo

on S.B. 915 (April 1, 1993). As the Floor Report explained:

The bill further provides that for a

municipality with a tree management plan and

designated in a county master plan as an

10

Pre-amendment, the Act had set out a fairly rigid afforestation or

reforestation sequence that gave local jurisdictions little discretion—

when addressing applications for clustered development—to approve

off-site afforestation that would be more beneficial than on-site planting.

See Lawrence R. Liebesman & Karen M. Singer, Maryland Growth and

Chesapeake Bay Protection Act: The View from the Development

Community, 1 U. Balt. J. Envtl. L. 43, 61 (1991).

88 [105 Op. Att’y

existing population center in conformance

with the Economic Growth, Resource

Protection, and Planning Act of 1992, or in

any other area designated by the Department

as part of a local program, the program may

establish criteria for using street trees for full

credit as a mitigation technique; and for using

the acquisition of an off-site protective

easement for existing forested areas not

currently protected as a mitigation technique

(for credit not to exceed 50% of the area of the

forest cover protected).

Floor Report on S.B. 915, 1993 Leg., Reg. Sess.; see also

Written Testimony of MML on S.B. 915 (March 23, 1993) (noting

that the bill “clarifies the permissive authority for local

governments to use as mitigation techniques street trees and also

off-site protective easements in municipal corporate limits,

unincorporated urban centers, and other areas approved by

[DNR]”). The 1993 legislation was thus enacted to address a

specific problem for projects in urbanized locations and other

specially designated areas as approved by DNR, not to broadly

authorize applicants to purchase easements in existing forest

instead of creating new forest to offset the effects of their

development projects.

Four years later, the General Assembly amended the Act to

establish mitigation banking as an offset measure and, in the course

of doing so, also revised NR § 5-1607(b), among other provisions.

See 1997 Md. Laws, ch. 559. The new law directed mitigation

banking to environmentally sensitive “priority areas,” such as

stream buffers, floodplains, and critical wildlife habitats, as well as

to areas where afforestation or reforestation would create larger

blocks of contiguous forest. See NR §§ 5-1607(d) (listing the

priority areas and goals), 5-1610.1(c) (permitting mitigation banks

only in priority areas identified in § 5-1607(d) or the local

jurisdiction’s comprehensive plan). In the same legislation, the

General Assembly also restructured and amended NR § 5-

1607(b)(2) to preface it with the phrase “[t]he use of street trees.”

1997 Md. Laws, ch. 559. Although that provision, as enacted,

retained the reference to “[a]cquisition as a mitigation technique of

an off-site protective easement,” the provision then, as now, did not

mention mitigation banking credits and was not codified with the

separate provisions on mitigation banking.

Gen. 66] 89

In short, nothing in the legislative history of the 1993

precursor to NR § 5-1607(b)(2)(ii) suggests that the General

Assembly viewed those “protective easements” as part of the not-

yet-existent mitigation banking scheme. And nothing in the 1997

revisions that created the mitigation banking scheme suggests that

the General Assembly believed that NR § 5-1607(b)(2) already

authorized the use of existing forests as mitigation banks. Instead,

the 1997 law separately created mitigation banks and expressly

stipulated that mitigation banks must be created or restored

expressly for the purpose of providing mitigation-bank credits.

This lack of overlap between NR § 5-1610.1—the mitigation-

banking approach—and NR § 5-1607(b)(2)—the protective-

easement approach—makes sense in light of the different purposes

of the two provisions. The purpose of the mitigation banking

provision was to provide landowners with incentives to create

forest in “priority areas”—the areas where forest would provide the

most environmental benefits—as a way to meet afforestation and

reforestation requirements and to encourage the creation of large

blocks of conserved forest. See NR § 5-1610.1. 11 By contrast, the

primary purposes of the protective-easement provision were, first,

to provide flexibility for local governments to cluster development

so as to conserve open spaces and, second, to enable existing

afforestation and reforestation requirements to be met in densely-

populated areas without sufficient space in which to afforest or

reforest.

Put another way, although the two methods may be

implemented through similar types of protective instruments, they

are separate, and each has its own set of requirements. The most

obvious difference is that the retention of off-site existing forest

under NR § 5-1607(b)(2)(ii) is entitled only to half-credit as a

mitigation technique, while mitigation banking is entitled to full

credit. But another important difference is that the preservation-

11

The General Assembly has created various incentives to encourage

landowners to preserve and maintain existing forests, including tax

incentives. See, e.g., Md. Code Ann., Tax-Prop. § 8-211 (generally

providing for the freezing of the assessed value of forest land managed

under a Forest Conservation and Management Program agreement with

DNR); Md. Code Ann., Tax-Gen. § 10-208(i) (providing an income tax

modification for certain reforestation and timber stand improvements).

We see no indication from the legislative history or the text of NR § 5-

1601(o) that mitigation banking was intended to be one of those

incentives.

90 [105 Op. Att’y

of-existing-forest method is permissible only for developments in

certain specified areas, namely, “in a municipal corporation with a

tree management plan, in an existing population center designated

in a county master plan that has been adopted to conform with the

Economic Growth, Resource Protection, and Planning Act of 1992,

or in any other designated area approved by the Department as part

of a local program.” NR § 5-1607(b)(2); see also COMAR

08.19.02.02O (noting that this method may be used only “for specific

development projects which are located in: (a) Municipalities which

adopt a tree care protection ordinance or master plan for trees

planted in public rights-of-way or planted in accordance with this

regulation; (b) An existing area as designated under an adopted

local land use plan which meets the standards of Article 66B,

§§ 3.05–3.06, Annotated Code of Maryland; or (c) Specific areas

designated in a local program subject to approval by the

Department.”).

Although the method is not limited solely to municipalities or

existing population centers (because the method may be used in

“other designated area[s],” if approved by DNR), the General

Assembly presumably did not intend “other designated area[s]” to

include an entire county or anywhere in that county, without limit.

See COMAR 08.19.02.02O (providing that the method applies in

“[s]pecific areas designated in a local program,” subject to DNR’s

approval (emphasis added)). Rather, “when general words in a

statute follow the designation of particular things or classes of

subjects or persons, the general words will usually be construed to

include only those things or persons of the same class or general

nature as those specifically mentioned.” In re Wallace W., 333 Md.

186, 190 (1993) (quoting Giant of Md. v. State’s Attorney, 274 Md.

158, 167 (1975)). That is particularly true when, as here, the final

term in the list is “preceded by the word ‘other,’ which is a standard

grammatical cue that a term is meant to encompass what came

before it.” Harleysville Preferred Ins. Co. v. Rams Head Savage

Mill, LLC, 237 Md. App. 705, 728-29 (2018).

Application of those principles here suggests that any “other

designated area” must be “of the same class or general nature,” In

re Wallace W., 333 Md. at 190, as municipalities and existing

population centers, the areas that are specifically designated in the

statute. At the least, that means that a “designated area” must be a

specific, identifiable area within the county, not the county as a

whole. See COMAR 08.19.02.02O. And, in our view, it also

means that, as with municipalities and existing population centers,

there must be a special need—particular to that area—for the street-

trees and protective-easement methods to apply there, such as, for

Gen. 66] 91

example, the jurisdiction’s decision to prioritize the area for

clustered development or a lack of space there to meet afforestation

requirements using other methods. Thus, although identifying the

types of areas that DNR may approve is beyond the scope of this

opinion, one example of an area that might qualify as an “other

designated area” is a planned growth area that is outside of an

existing population center. See Report of the Senate Econ. and

Envtl. Affairs Comm. on S.B. 33, 1997 Leg., Reg. Sess., at 3

(noting that the method would apply “[i]n certain municipal areas

and designated growth areas” (emphasis added)); Report of the

House Envtl. Matters Comm. on S.B. 33, 1997 Leg., Reg. Sess., at

2 (noting that the method would apply “[i]n municipal areas and

designated growth areas” (emphasis added)).

That reading is also consistent with the apparent purposes of

this method, which were to allow existing afforestation and

reforestation requirements to be met in densely-populated areas

and to allow for cluster development that preserved open space, as

well as with the conditional flexibility that NR § 5-1607(a)(4)

affords local jurisdictions to alter the sequence of mitigation

measures “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.” By

contrast, interpreting the method to apply anywhere in a county,

without limit, would threaten to undermine the broader goals of the

Act, which we have described as a “comprehensive effort to stem

the loss of the State’s forest cover.” 86 Opinions of the Attorney

General 72, 74 (2001).

Whatever the phrase “other designated area” means, however,

it is clear that any such area must actually be “designated” by the

jurisdiction and approved by DNR before the method can apply

there. Although the Act does not specify exactly how that approval

process is to work, the context and history of that provision, as well

as DNR’s role in reviewing local jurisdictions’ forest conservation

programs and land use plans, suggest that the General Assembly

expected the “designat[ion]” to be done through formal planning

processes, not on an ad hoc basis for each development project.

The term “designate,” after all, connotes a formal adoption of some

sort. See, e.g., Foley v. K. Hovnanian at Kent Island, LLC, 410 Md.

92 [105 Op. Att’y

128, 133 (2009) (referring to categories of development areas that

have been “designated” in county’s critical area plan). 12

Of course, in the specially designated areas where this method

is permissible, a local jurisdiction has some discretion to determine

the applicable “standards” and “criteria,” subject to DNR approval.

See NR § 5-1607(b) (providing that “[s]tandards for meeting

afforestation or reforestation requirements” using the listed

methods, including the protective-easement method, “shall be

established by the State or local program”); NR § 5-1607(b)(2)

(providing that the local jurisdiction is to adopt the method “under

criteria established by the local program, subject to the approval of

the Department”). Local jurisdictions also generally may adopt

“requirements or standards” for their programs that are “more

stringent” than those in the Act. 100 Opinions of the Attorney

General at 125 (quoting NR § 5-1603). Taken together, those

provisions suggest that local jurisdictions may be able to import

certain requirements, standards, and mechanisms that apply to

mitigation banking into this separate method for the preservation

of existing forest under NR § 5-1607(b)(2).

In our opinion, however, a local jurisdiction’s discretion to

establish “standards” and “criteria” for the protective-easement-

for-existing-forest method provided by NR § 5-1607(b)(2)(ii) does

not include the authority to turn that method into “mitigation

banking” as defined by NR § 5-1601(o) and provided by NR § 5-

1610.1. Although comprehensive guidance about the limits of a

local program’s discretion under NR § 5-1607(b)(2) is again

beyond the scope of your request, the requirements for that method

in a local program must, at a minimum, be as stringent as those in

the statute. That is, the method must be limited to developments in

permissible areas and to “[a]cquisition as a mitigation technique of

an off-site protective easement for existing forested areas not

currently protected in perpetuity.” NR § 5-1607(b)(2)(ii).

To be clear, as long as the method is limited to permissible

areas, the language in NR § 5-1607(b)(2)(ii) might be broad enough

to allow a local jurisdiction to adopt a program under which an

applicant (i.e., the developer) can pay another property owner to

put that other owner’s existing forest under a protective easement

and to do so using vocabulary, standards, and criteria that might be

similar to those used in mitigation banking. However, a local

jurisdiction should take care not to simply import the mitigation

banking scheme into this method wholesale without first

12

It is not clear to us whether DNR has actually been asked to approve

(or has been approving) any such designated areas.

Gen. 66] 93

determining whether each of the elements is consistent with the

statutory requirements for this separate method. For example, there

is a serious question as to whether an applicant’s purchase of a

“credit” in existing forest that had already been placed under a

permanent protective easement in advance (as is permissible for

mitigation banking), rather than as a direct result of the applicant’s

development project, could qualify as an offset measure under this

method. That is because, by the time the developer is seeking to

“acqui[re]” such an interest in existing forest “as a mitigation

technique,” the forested area would already have been “protected

in perpetuity,” which seems to conflict with the requirement in NR

§ 5-1607(b)(2)(ii) that the area not already be protected.

We thus conclude that while NR § 5-1607(b)(2)(ii) may under

certain circumstances permit the use of protective easements for

existing forested land as an offset measure in municipalities,

existing population centers, and certain other areas designated by

the local government and approved by DNR, that method is not

“mitigation banking” as defined by the Act.

III

Conclusion

In our opinion, the plain language of the Forest Conservation

Act makes clear that the only forests in Maryland that are eligible

for treatment as “forest mitigation banks” from which developers

may buy credits for that offset method are forests that were

“intentional[ly]” created or restored “expressly” for that purpose

and located in accordance with the Act’s “priority” location

provisions. NR §§ 5-1601(o), 5-1601.1(c). Although existing trees

that are preserved and protected in accordance with NR § 5-

1607(b)(2)(ii) might meet the Act’s requirements in a municipality,

existing population center, or other designated area that a local

jurisdiction has designated with DNR’s approval as part of a

program approved by DNR—and although a local program’s

implementation of that method might have elements in common

with mitigation banking—the preservation of those trees would not

qualify for treatment as a “mitigation bank.”

Brian E. Frosh

Attorney General of Maryland

Ann MacNeille

Assistant Attorney General

Patrick B. Hughes

Chief Counsel, Opinions & Advice