120 [100 Op. Att’y

NATURAL RESOURCES

F OREST C ONSERVATION A CT – W HETHER L OCAL J URIS

DICTIONS M AY E NACT P ROGRAMS WITH C ONSERVATION
T HRESHOLDS AND R EFORESTATION R ATIOS THAT A RE
M ORE S TRINGENT THAN S TATE L AW

.

October 21, 2015

The Honorable Kumar P. Barve Chair of the House Environment and Transportation Committee Maryland House of Delegates

You have asked for our opinion about the degree to which local jurisdictions may enact forest conservation p rograms that are more stringent than the Maryland Forest Conservatio n Act (“FCA” or “Act”), Md. Code Ann., Nat. Res. (“NR”) §§ 5-160 1 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 i ts efforts are being complicated by uncertainty on these questions.Gen. 120] 121

In our opinion, local jurisdictions may enact fores t conservation programs with requirements and standar ds that are more stringent than those set forth in the Forest C onservation Act. Accordingly, local jurisdictions may require develo pment projects to meet a “no net loss” requirement and levels of r eforestation and afforestation that are more protective than the sta ndards and requirements set forth in the state law. If a loca l 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 whe n 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 proje ct involving the development of 40,000 square feet or more that requ ires a subdivision plan, grading permit, or sediment contr ol permit. NR § 5-1602(a). The Act delegates primary responsibil ity for implementation to the localities; each unit of loca l government with planning and zoning authority is charged with apply ing the Act to projects requiring local development approval. 1 To carry out that responsibility, local governments must “develop a l ocal conservation program, consistent with the intent, r equirements, and standards of” the Act and submit that program to DN R 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 jurisdi ctions). Local

1 The Act does not apply in a county that “has and m aintains 200,000

acres or more of its land area in forest cover.” N R § 5-1602(b)(10). When the statute was enacted, only Allegany and Gar rett counties met the terms of the exemption. 86 Opinions of the Attorney General at 76. It is our understanding that those two counties rem ain exempt today.122 [100 Op. Att’y

programs must “meet[]” or be “more stringent than t he requirements and standards of [the Act].” NR § 5-1 603(a)(2), (c). 2

The Act establishes a basic framework for determini ng how many trees must be retained, and how many may be re moved, 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 include s a map indicating the species, location, and size of the t rees on the property and the dominant and codominant forest types. NR § § 5-1601(p), 5-1604. Next, upon notice from the approving autho rity that the forest stand delineation is complete and correct, t he applicant must

submit a forest conservation plan . NR § 5-1605(a). This plan, again prepared by a qualified professional, must in clude a visual depiction of the forest conservation to be provided on the site, including areas where existing forest will be retai ned; areas where afforestation (planting in areas where there are pr esently 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 r eforested areas will be maintained. NR § 5-1605(b), (c). The applicant must obtain approval of the plan from the relevant agenc y before a subdivision plan or grading or sediment control per mit may be approved or issued. NR § 5-1608.

In addition to its planning requirements, the Act a lso includes substantive afforestation provisions that require t he landowner to plant trees in areas where none existed. See NR § 5-1606(a). The afforestation requirements vary with the land use c ategory of the property. For example, lands zoned agricultural mu st be planted
with trees sufficient to achieve 20% tree cover; la nds zoned commercial must achieve 15% cover. NR § 5-1606(a)( 1), (2). The

Act also establishes re forestation requirements for all land use categories based on certain “conservation threshold s.” NR § 5- 1606(b). The conservation thresholds are defined a s “the percentage of the net tract area at which the refor estation requirement increases from a ratio of 1⁄4 acre plante d for each acre removed, to a ratio of 2 acres planted for each acr e removed.” Id

. As with afforestation, the reforestation requiremen ts vary by land use category: for agricultural lands, the more agg ressive requirements kick in once 50% of the tract is devel oped, whereas

2 The Department is required to implement a State fo rest conservation program for State projects and in cove red 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 th reshold is credited against the total number of acres to be re forested. NR § 5- 1606(d)(2). All afforestation and reforestation mu st be completed within one year or two growing seasons after comple tion 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 juri sdictions (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 thei r 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 a ll other options are exhausted, payment to the State or local Forest Conservation Fund. NR §§ 5-1607(a), 5-1606(f)(2). The determina tion of how to apply that sequence, however, is made by the loc al authority. NR § 5-1607(a). Similarly, the details of how to c arry out the Act’s afforestation and reforestation requirements are le ft to the local authority to determine using certain methods enumer ated in the statute. NR § 5-1607(b). The Act also leaves it t o the local authority to develop provisions for preserving cert ain 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, inclu ding a technical guidance manual and a model ordinance, by December 31, 1991. NR § 5-1609. Thereafter, all units of government w ith 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, eac h such unit was directed to formally adopt the program and subm it its adopted program to the Department by December 31, 1992. NR § 5- 1603(b). The Department has continuing review auth ority 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 re quirements were tight. In late 1991, with input from stakehol ders, including124 [100 Op. Att’y

local governments and the building industry, the De partment promulgated regulations and a model ordinance, whic h became effective on January 20, 1992. 19:1 Md. Reg. 24 (1 992); 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 sever al times, and the Department has updated its regulations and model ordinance to reflect those statutory changes. Loca l governments,
in turn, have revisited their local ordinances and, in the process of amending their ordinances, some have sought to devi ate from the model ordinance and statutory requirements in an ef fort to protect more forested land. In reviewing these proposed di fferences, DNR has acknowledged that a local government may develo p a program that is more stringent than the requirements and st andards of the statute. For example, the Department has apparentl y approved broader criteria for plants and areas considered pr iority for retention, more explicit criteria for removal of pr iority forest, and

more restrictive standards for the location of affo restation and

reforestation.

It is our understanding, however, that the Departme nt has informed local jurisdictions on at least two occasi ons that they may

not establish conservation thresholds or reforestat ion ratios that vary from those set forth in the Act. The Departme nt has also recently made its interpretation known to an enviro nmental advocacy group that had inquired about the status o f the City of Annapolis’s local program. See Letter from Mark J. Belton, DNR Secretary, to Alison Prost, Chesapeake Bay Foundati on (July 2, 2015) (stating that “the Forest Conservation Act do es allow or enable local jurisdictions to craft forest conserva tion ordinances that include components that are more stringent tha n the statute,” but that such components “may not alter the [conser vation]
thresholds and [reforestation] ratios established b y 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 f orest conservation programs that are more stringent than State law is a matter of statutory construction. When construing statutes, weGen. 120] 125

follow familiar rules. As the Court of Appeals has explained, the “cardinal rule of statutory interpretation is to as certain 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 lan guage 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 statut e in order to give it a meaning not reflected by the words the Le gislature 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 cha rged with applying it is entitled to “a certain amount of def erence,” Motor Vehicle Admin. v. Salop , 439 Md. 410, 421 (2014) (internal quotation marks omitted), with the weight to be acc orded that interpretation dependent upon a number of considera tions, including the extent to which the interpretation is contemporaneous and has been applied “consistently and for a long p eriod of time,” Baltimore Gas & Elec. Co. v. Pub. Serv. Comm’n of M d. , 305 Md. 145, 161 (1986). Also, the “nature of the process through which the agency arrived at its interpretation is a relev ant consideration”; courts will give “little weight” to an agency inter pretation that “is the product of neither contested adversarial procee dings nor formal rule promulgation.” Id . at 161-62. Finally, “[a]n administrative agency’s construction of the statute is not entitle d to deference . . . when it conflicts with the unambiguous statutory la nguage.” Marriott Employees Fed. Credit Union v. Motor Vehic le Admin

., 346 Md. 437, 446 (1997). With these and other canon s 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 s eems clear: Each local government unit with planning an d zoning authority must develop and adopt a local forest con servation program that “meets or is more stringent than the requirements and standards of this subtitle.” NR § 5-1603(a)(2) (em phasis added);

see also NR § 5-1603(c) (same). In authorizing greater stri ngency, § 5-1603 does not specify any particular “requireme nt” or126 [100 Op. Att’y

“standard” or any particular part of a local progra m; it simply refers to the “requirements and standards” of the Act. In the absence of a definition of “requirements and standards” that lim its those terms to particular aspects of the statute, this provisio n would seem to

cover all of the statutory provisions that govern the preserv ation and augmentation of forest cover. Under the plain language, then, local programs may include requirements and standar ds that are more stringent than those set forth in the Act.

As it explains in its July 2015 letter, the Departm ent has interpreted the statute somewhat differently. It r eads the “more stringent than” language of § 5-1603 as inapplicabl e to the
“conservation thresholds” set forth in § 5-1606. T he 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) pr ovides that the standards for meeting afforestation or reforestatio n 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 r eforestation.” 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 Departmen t’s interpretation is inconsistent with the plain langu age of § 5-1603, and that the conservation thresholds qualify as “re quirements and standards” with respect to which a local jurisdicti on may be stricter
than the Act. First of all, in terms of nomenclatu re, we see no indication that the General Assembly intended to us e the word “threshold” in § 5-1606 as a way of distinguishing it from the Act’s other “requirements” and “standards.” The conserva tion thresholds are themselves only a means of calculati ng 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 1⁄4 acre planted for every 1 acre removed to a ratio of 2 acres planted for every 1 a cre removed.” (emphasis added)). The conservation thresholds thu s 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”). Al though theGen. 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, th e thresholds operate as “requirements” or “standards” that the S tate and local programs must incorporate. In sum, we see no reaso n, 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 term s “requirements” and “standards” throughout the Act i ndicates that the two terms were meant to cover all aspects of th e forest conservation program. For example, the statute pro vides 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 sub title.” NR § 5- 1603(a)(1). If the conservation “thresholds” did n ot qualify as “standards” or “requirements,” then local programs would not have

to be consistent with those thresholds. That resul t would be inconsistent with legislative intent and the agency ’s practice. Similarly, the General Assembly directed the Depart ment to prepare guidance manuals to assist local programs i n carrying out the Act’s requirements, NR § 5-1609(a)(1), and spec ified that “[a]ll provisions of the guidance manual that are not spec ifically noted as standards or minimum requirements shall be deemed recommendations by the Department for the developme nt of the local program,” NR § 5-1609(a)(2). The statute thu s contemplates that the Department’s guidance would cover two diff erent 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 conservati on “thresholds” that, unlike “standards” or “requirements,” a local program must adopt and yet may not exceed.

We recognize, as the Department has pointed out, th at 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 (empha sis in original). The language the Department emphasizes is clearly t he language

of requirement

and, as applied to the Department, it operates as such. When called upon to implement a forest conse rvation program with respect to State projects and in local jurisdictions that128 [100 Op. Att’y

do not have an approved program in place, the Depar tment 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 th an 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 ex clude the conservation thresholds would dramatically reduce t he efficacy of the local programs’ authority. As its name suggest s, the purpose of the Forest Conservation Act is to conserve Maryland ’s remaining forests, a goal that the Act accomplishes principal ly through its afforestation and reforestation requirements. Thos e requirements are the heart of the statute’s regulatory charge. If local jurisdictions are unable to enact programs that are more stringen t with respect to those requirements, then the scope of § 5-1603 i s diminished substantially.

Moreover, the types of regulatory decisions with re spect to which the Department has traditionally allowed loca l jurisdictions to be more stringent than State law—things like mor e 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 sequen ce for afforestation or reforestation “if necessary to ach ieve the objectives of a local jurisdiction’s land use plans or policie s or to take advantage of opportunities to consolidate forest co nservation efforts”); § 5-1607(b) (“Standards for meeting affo restation 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 mo re stringent requirements out of existence, an interpretive resu lt 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, c lause, sentence or phrase is rendered surplusage, superfluous, mean ingless or nugatory” (internal quotation marks omitted)).

We also cannot square the Department’s interpretati on 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, afforest ation, and reforestation. As Attorney General Curran previous ly opined, “[t]he Forest Conservation Act reflects a legislati ve judgment thatGen. 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 “li mited, interstitial one,” designed only as a “back-up” sho uld a local jurisdiction fail to adopt an approvable program. Id . at 131-32. Excluding the conservation “thresholds” from the sc ope of § 5- 1603(a) would lock local programs into the State re quirements in a way that seems out-of-step with that legislative de sign.

Limiting the local jurisdictions’ ability to enact more stringent

forest conservation measures also seems inconsisten t with the statutory provisions that grant those jurisdictions planning and zoning authority in the first place. Those provisi ons require charter counties, and non-charter counties and municipaliti es, to include within their comprehensive plans the “visions” set forth in § 1-201 of the Land Use Article and certain planning “eleme nts,” including
“a sensitive areas element.” Md. Code Ann., Land U se (“LU”)
§§ 1-406, 3-102. The “visions” set forth in § 1-20 1 include one for “resource conservation,” so that “waterways, forests , agricultural areas, open space, natural systems, and scenic area s are conserved.” LU § 1-201(10) (emphasis added). “Sen sitive area elements” must “include the goals, objectives, prin ciples, policies, and standards designed to protect sensitive areas f rom the adverse effects of development,” LU §§ 1-408(a), 3-104(a), and “sensitive areas,” in turn, are defined to include “agricultur al or forest land intended for resource protection or conservation,” LU § 1-101(o) (emphasis added). These provisions thus contemplat e that local jurisdictions might include forest conservation mea sures within their comprehensive plans. And, when any local law or regulation adopted under the planning and zoning division of t he Land Use Article conflicts with any other statute, local law , or other regulation, the provision that “imposes a more rest rictive standard” controls. LU § 1-202(a), (b). The Land Use Articl e thus specifically allows local jurisdictions, in the exe rcise of their planning and zoning powers, to enact land use stand ards that are more stringent than those provided in State law. W e 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 r egard to

those natural resources.

Although we conclude that the language of the Fores t Conservation Act unambiguously allows local jurisdi ctions to adopt forest conservation measures that are more st ringent than State law, we also consider the Act’s legislative h istory because the130 [100 Op. Att’y

Department has suggested that it supports a contrar y reading. The Department focuses on the fact that legislative fin dings declaring a “no net loss” policy were stripped from the bill, a nd 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 ser ve 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 provisio ns bears on whether local governments may enact more stringent programs on their own. The deletion of the legislative finding s discussing a “no net loss” policy suggests that the Legislature may have backed away from adopting a formal statewide policy, but i t says nothing about the scope of local authority. Nor does the d eletion of the phrase “a minimum of” from § 5-1606 address local a uthority. That deletion was part of a larger revision of the section that changed an across-the-board 20% afforestation requi rement 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 § 5-1 606(a), (b)). The deletion of the “a minimum of” language might s imply have reflected the fact that 20% was no longer the minim um afforestation requirement.

We find more compelling the absence of any indicati on in the legislative history that legislators or stakeholder s believed that the conservation thresholds were excluded from the scop e of the “more stringent” savings clause. To the contrary, what l ittle 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 R eport at 1 (“Local governments must develop a local forest con servation 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 e quivalent to, or more stringent than, the provisions contained in th e bill”); House
Environmental Matters Committee, S.B. 224, Bill Ana lysis at 1 (“Localities must adopt forest conservation program s that meet or exceed State standards, following guidelines and cr iteria established in the bill.”); see also DNR, S.B. 224 Bill Report at 2 (Jan. 29, 1991) (stating that local jurisdictions w ould have to develop programs “with standards at least as string ent as those set forth in the law”). In the months following enactm ent of the legislation, the Chairman of the House Environmenta l Matters Committee wrote to our Office objecting to the Depa rtment’sGen. 120] 131

overzealous implementation of the Act in some respe cts, 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 exc lude conservation thresholds from the scope of the “more stringent” clause, all of these descriptions read the clause b roadly to allow local jurisdictions to be more stringent with respe ct 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 i nformed local jurisdictions that they could not adopt conservatio n thresholds different from those set forth in the Act. The Dep artment’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 infor mal 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 Departmen t’s interpretation is contemporaneous and long-held, ultimately that i nterpretation 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 defe rence, however, when it conflicts with the unambiguous statutory la nguage.”). As we conclude above, the Act unambiguously allows loc al

3 The fiscal and policy notes accompanying subsequen t amendments to the Act similarly give the savings provision a b road construction. See 2009 Reg. Sess., S.B. 666, Revised Fiscal and Polic y Note at 4 (“Enacted in 1991, the Forest Conservation Act provides a set of minimum standards that developers must follow when designin g a new project that affects forest land. Local governments are respons ible for making sure these standards are met, but they may choose to imp lement even more stringent criteria.”); 2013 Reg. Sess., H.B. 706, R evised Fiscal and Policy Note at 2 (same).

4 An agency interpretation that is adopted outside o f a contested case hearing or a formal rule promulgation is entitled t o a somewhat lesser degree of deference because it is untested by the a dministrative and legislative review that those proceedings involve. See

, e.g.

, Evans v.

State , 396 Md. 256, 348 (2006) (discussing the importanc e of AELR Committee review for purposes of determining whethe r 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 stringen t than those set forth in the Act, and there is nothing in the Act o r its legislative history that excludes conservation thresholds and r eforestation ratios from that grant of authority.

In sum, we see nothing in the statute or legislativ e 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 acco rding to their common and everyday meaning, are clear and unambigu ous 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 conc lusion from 2001: “Local governments with planning and zoning authori ty are required to develop local forest conservation progr ams 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) find ing might weigh against reading the statute to allow local jurisdic tions to adopt a

5 Local programs may also be more stringent than the Department’s model ordinance, which is designed to mirror the re quirements of the

statute. See NR § 5-1609(a)(1)(ii).Gen. 120] 133

“no net loss” policy on its own, but not necessaril y so. There is a difference between declaring a statewide “no net loss” policy and allowing a local jurisdiction to adopt such a polic y to guide its own land use and development processes. Rejecting the first does not imply rejection of the second. We find it more sig nificant 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 n o net loss, there is nothing in the Act that prevents a local jurisdicti on from doing so.

Furthermore, the deletion of the “no net loss” find ing 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 dire cted the Department to cooperate with forestry-related stake holder 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.” 200 9 Md. Laws, ch. 298 (codified at NR § 5-104(a)). The Department’s subsequent report supported the DNR Sustainable Forestry Counc il’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. B ased 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 can opy”). The bill also makes various changes aimed at preserving fore st land in the State. It focuses on protecting forests through pl anning, encouraging private forest management through expan ded tax credits, increasing flexibility in reforestation ef forts, increasing forest fire responsibility, and improving complianc e with the

earlier Forest Conservation Act.

The 2013 legislation does not speak to the stringen cy of the requirements or standards that a local jurisdiction may include within its forest conservation program. Nor does i t 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 b y the Legislature’s deletion of the “no net loss” finding in 1991. Given134 [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 loc al jurisdiction may enact a local forest conservation program that embodies a “no net loss” policy.

B. A Local Jurisdiction Need Not Justify its Decisi on 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 l ocal 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 string ent than a corresponding State requirement, the answer is no a nd 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 jurisd iction might start with the model ordinance, but alter many of i ts provisions in a way that makes the relative stringency of the loc al program difficult to determine. For example, because a loc al program is designed to be implemented as part of a broader dev elopment review process, the local government may use termin ology than is different from that used in State law. Some change s in a proposed ordinance might appear to be more restrictive, othe rs less so. In

order to make a determination as to whether the ord inance is “consistent with the intent, requirements, and stan dards” of the Act, NR § 5-1603(a), the Department may properly ask the local jurisdiction to explain how different aspects of it s proposed program compare to the State law.

III

Conclusion

Local jurisdictions may enact forest conservation p rograms that are more stringent than the Forest Conservatio n 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 co nservation and provide levels of reforestation and afforestation t hat are more protective of our State’s forest cover than the sta ndards and requirements set forth in the state law. Should a local government elect to do so, it is not required to justify the g reater level ofGen. 120] 135

protection, but the Department may require the loca l jurisdiction to explain how its program is consistent with the inte nt, requirements,

and standards of the Act.

Brian E. Frosh Attorney General of Maryland

Adam D. Snyder Chief Counsel, Opinions & Advice