120 [100 Op. Att’y 

NATURAL RESOURCES 

FOREST CONSERVATION ACT – WHETHER LOCAL JURISDICTIONS MAY ENACT PROGRAMS WITH CONSERVATION

THRESHOLDS AND REFORESTATION RATIOS THAT ARE 

MORE STRINGENT THAN STATE LAW. 

October 21, 2015 

The Honorable Kumar P. Barve 

Chair of the House Environment and 

 Transportation Committee 

Maryland House of Delegates 

You have asked for our opinion about the degree to which 

local jurisdictions may enact forest conservation programs that are 

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

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

1613. Specifically, you ask two questions: 

 May a local jurisdiction adopt an 

ordinance under the state Forest 

Conservation Act that requires no net loss 

of forest from development and higher 

levels of reforestation and afforestation 

than under the thresholds specified in NR 

§ 5-1606 or that exceed other requirements 

of the Forest Conservation Act or the 

Department of Natural Resources’ model 

ordinance? 

 May a local jurisdiction adopt other more 

stringent provisions in an ordinance under 

the state Forest Conservation Act without 

the Department of Natural Resources 

requiring an explanation or justification as 

to why each of that ordinance’s provisions 

are more stringent than the Act or model 

ordinance, including such items as greater 

protection of forested stream buffers, steep 

slopes, highly erodible soils, and larger 

trees? 

It is our understanding that the City of Annapolis is contemplating 

the enactment of a forest conservation program with standards that 

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

complicated by uncertainty on these questions. 
Gen. 120] 121

In our opinion, local jurisdictions may enact forest 

conservation programs with requirements and standards that are 

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

Accordingly, local jurisdictions may require development projects 

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

afforestation that are more protective than the standards and 

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

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

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

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

program is consistent with the intent, requirements, and standards 

of the Act. 

I 

Background

A. The Forest Conservation Act Statutory Scheme 

The Forest Conservation Act provides minimum 

requirements for forest conservation that apply when someone 

develops land in Maryland. See generally 77 Opinions of the 

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

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

enumerated exceptions, the Act applies to any project involving the 

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

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

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

implementation to the localities; each unit of local government with 

planning and zoning authority is charged with applying the Act to 

projects requiring local development approval.1

 To carry out that 

responsibility, local governments must “develop a local 

conservation program, consistent with the intent, requirements, and 

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

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

Attorney General 127 (concluding that adoption of a forest 

conservation program is mandatory for local jurisdictions). Local 

 

1

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

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

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

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

It is our understanding that those two counties remain exempt today. 
122 [100 Op. Att’y 

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

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

The Act establishes a basic framework for determining how 

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

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

the applicant to submit a forest stand delineation. The delineation 

is prepared by a qualified professional and includes a map 

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

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

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

forest stand delineation is complete and correct, the applicant must 

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

again prepared by a qualified professional, must include a visual 

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

including areas where existing forest will be retained; areas where 

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

is planned; an afforestation and reforestation plan with a timetable 

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

year management plan detailing how afforested and reforested 

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

obtain approval of the plan from the relevant agency before a 

subdivision plan or grading or sediment control permit may be 

approved or issued. NR § 5-1608. 

In addition to its planning requirements, the Act also includes 

substantive afforestation provisions that require the landowner to 

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

afforestation requirements vary with the land use category of the 

property. For example, lands zoned agricultural must be planted 

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

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

Act also establishes reforestation requirements for all land use 

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

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

percentage of the net tract area at which the reforestation 

requirement increases from a ratio of 1⁄4 acre planted for each acre 

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

As with afforestation, the reforestation requirements vary by land 

use category: for agricultural lands, the more aggressive 

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

 

2

 The Department is required to implement a State forest 

conservation program for State projects and in covered jurisdictions 

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

08.19.04.01A. 
Gen. 120] 123

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

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

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

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

within one year or two growing seasons after completion of the 

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

Although the Act includes these basic substantive 

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

Department, with respect to developments that fall within the 

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

how those requirements must be satisfied under their respective 

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

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

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

are exhausted, payment to the State or local Forest Conservation 

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

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

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

afforestation and reforestation requirements are left to the local 

authority to determine using certain methods enumerated in the 

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

authority to develop provisions for preserving certain areas that are 

considered priorities for retention and protection. NR § 5-

1607(e)(1). 

B. Implementation of the Forest Conservation Act’s 

Requirements 

The Forest Conservation Act was enacted in 1991 and became 

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

Department was directed to adopt regulations, including a technical 

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

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

and zoning approval had to submit a proposed forest conservation 

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

Following DNR approval of the proposed program, each such unit 

was directed to formally adopt the program and submit its adopted 

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

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

local programs and is directed to conduct biennial reviews of each 

authority’s program. NR § 5-1603(e). 

The initial deadlines for implementing the Act’s requirements 

were tight. In late 1991, with input from stakeholders, including 
124 [100 Op. Att’y 

local governments and the building industry, the Department 

promulgated regulations and a model ordinance, which became 

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

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

local ordinances, most counties and municipalities initially adopted 

the model ordinance with minimal changes. 

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

and the Department has updated its regulations and model 

ordinance to reflect those statutory changes. Local governments, 

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

amending their ordinances, some have sought to deviate from the 

model ordinance and statutory requirements in an effort to protect 

more forested land. In reviewing these proposed differences, DNR 

has acknowledged that a local government may develop a program 

that is more stringent than the requirements and standards of the 

statute. For example, the Department has apparently approved 

broader criteria for plants and areas considered priority for 

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

more restrictive standards for the location of afforestation and 

reforestation. 

It is our understanding, however, that the Department has 

informed local jurisdictions on at least two occasions that they may 

not establish conservation thresholds or reforestation ratios that 

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

recently made its interpretation known to an environmental 

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

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

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

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

enable local jurisdictions to craft forest conservation ordinances 

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

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

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

II 

Analysis 

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

Other Forest Conservation Measures that Are More 

Stringent than the Act’s Requirements. 

The extent to which local jurisdictions may enact forest 

conservation programs that are more stringent than State law is a 

matter of statutory construction. When construing statutes, we 
Gen. 120] 125

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

“cardinal rule of statutory interpretation is to ascertain and 

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

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

omitted). Statutory construction “begins with the plain language 

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

larger statutory scheme, for even “the plainest language is 

controlled by the context in which it appears.” Id. at 358-59 

(internal quotation marks omitted). Furthermore, “[w]ords may not 

be added to, or removed from, an unambiguous statute in order to 

give it a meaning not reflected by the words the Legislature chose 

to use . . . .” Smack v. Dep’t of Health and Mental Hygiene, 378 

Md. 298, 305 (2003). 

The interpretation of the statute by the agency charged with 

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

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

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

interpretation dependent upon a number of considerations, 

including the extent to which the interpretation is contemporaneous 

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

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

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

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

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

the product of neither contested adversarial proceedings nor formal 

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

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

when it conflicts with the unambiguous statutory language.” 

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

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

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

1. The Forest Conservation Act Allows Local 

Jurisdictions to Adopt Local Programs with 

Requirements that are More Stringent than State 

Law. 

The plain language of the Forest Conservation Act seems 

clear: Each local government unit with planning and zoning 

authority must develop and adopt a local forest conservation 

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

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

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

§ 5-1603 does not specify any particular “requirement” or 
126 [100 Op. Att’y 

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

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

definition of “requirements and standards” that limits those terms 

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

cover all of the statutory provisions that govern the preservation 

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

local programs may include requirements and standards that are 

more stringent than those set forth in the Act. 

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

interpreted the statute somewhat differently. It reads the “more 

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

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

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

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

local authority to establish the requirements that govern the forest 

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

standards for meeting afforestation or reforestation requirements 

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

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

for the preferred “sequence for afforestation and reforestation.” 

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

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

conservation threshold established for all land use categories,” and 

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

§ 5-1606(a)(1), (b). 

For several reasons, we conclude that the Department’s 

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

and that the conservation thresholds qualify as “requirements and 

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

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

indication that the General Assembly intended to use the word 

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

other “requirements” and “standards.” The conservation 

thresholds are themselves only a means of calculating the 

reforestation requirement for a particular project; they have no 

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

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

percentage of the net tract area at which the reforestation 

requirement changes from a ratio of 1⁄4 acre planted for every 1 acre 

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

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

part of a requirement that local jurisdictions may choose to make 

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

“afforestation or reforestation requirements”). Although the 
Gen. 120] 127

thresholds themselves do not require landowners to do anything, 

they provide the standard for applying the statute’s reforestation 

requirement in any given situation. Either way, the thresholds 

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

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

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

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

“standards.” 

Furthermore, the General Assembly’s use of the terms 

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

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

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

unit of local government having planning and zoning authority 

shall develop a local forest conservation program, consistent with 

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

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

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

to be consistent with those thresholds. That result would be 

inconsistent with legislative intent and the agency’s practice. 

Similarly, the General Assembly directed the Department to 

prepare guidance manuals to assist local programs in carrying out 

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

provisions of the guidance manual that are not specifically noted as 

standards or minimum requirements shall be deemed 

recommendations by the Department for the development of the 

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

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

“recommendations,” which local programs may choose to 

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

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

does not contemplate a third category of conservation “thresholds” 

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

adopt and yet may not exceed. 

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

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

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

and that a forest conservation plan ‘shall provide for reforestation 

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

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

The language the Department emphasizes is clearly the language 

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

such. When called upon to implement a forest conservation 

program with respect to State projects and in local jurisdictions that 
128 [100 Op. Att’y 

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

stray from the conservation thresholds established in the Act. But 

local jurisdictions are specifically authorized to enact their own 

programs with provisions that are more stringent than the 

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

into question that specific grant of authority. 

Moving beyond terminology to substance, reading the

statutory phrase “requirements and standards” to exclude the 

conservation thresholds would dramatically reduce the efficacy of 

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

the Forest Conservation Act is to conserve Maryland’s remaining 

forests, a goal that the Act accomplishes principally through its 

afforestation and reforestation requirements. Those requirements 

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

are unable to enact programs that are more stringent with respect 

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

substantially. 

Moreover, the types of regulatory decisions with respect to 

which the Department has traditionally allowed local jurisdictions 

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

standards for acceptable planting stock or location of afforestation 

and reforestation—are already expressly left to the local 

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

local jurisdictions to permit an alternative sequence for 

afforestation or reforestation “if necessary to achieve the objectives 

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

advantage of opportunities to consolidate forest conservation 

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

reforestation requirements shall be established by the State or local 

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

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

requirements out of existence, an interpretive result the Court of 

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

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

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

or phrase is rendered surplusage, superfluous, meaningless or 

nugatory” (internal quotation marks omitted)). 

We also cannot square the Department’s interpretation with 

our prior opinions on the Forest Conservation Act. Those opinions 

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

governments to enact local programs that protect and grow the 

State’s forest cover through conservation, afforestation, and 

reforestation. As Attorney General Curran previously opined, 

“[t]he Forest Conservation Act reflects a legislative judgment that 
Gen. 120] 129

the forest conservation program is best implemented and 

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

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

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

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

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

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

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

Limiting the local jurisdictions’ ability to enact more stringent 

forest conservation measures also seems inconsistent with the 

statutory provisions that grant those jurisdictions planning and 

zoning authority in the first place. Those provisions require charter 

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

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

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

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

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

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

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

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

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

and standards designed to protect sensitive areas from the adverse 

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

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

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

(emphasis added). These provisions thus contemplate that local 

jurisdictions might include forest conservation measures within 

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

adopted under the planning and zoning division of the Land Use 

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

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

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

specifically allows local jurisdictions, in the exercise of their 

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

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

to believe that the General Assembly, in requiring local 

jurisdictions to adopt forest conservation measures, intended to 

limit their traditional planning and zoning power with regard to 

those natural resources. 

Although we conclude that the language of the Forest 

Conservation Act unambiguously allows local jurisdictions to 

adopt forest conservation measures that are more stringent than 

State law, we also consider the Act’s legislative history because the 
130 [100 Op. Att’y 

Department has suggested that it supports a contrary reading. The 

Department focuses on the fact that legislative findings declaring a 

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

was amended to change the afforestation requirement from “up to 

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

afforestation requirements were not intended to serve as a floor 

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

including § 5-1606(a), (b)). 

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

whether local governments may enact more stringent programs on 

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

net loss” policy suggests that the Legislature may have backed 

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

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

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

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

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

current two-tiered requirement of 20% afforestation for certain 

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

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

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

reflected the fact that 20% was no longer the minimum 

afforestation requirement. 

We find more compelling the absence of any indication in the 

legislative history that legislators or stakeholders believed that the 

conservation thresholds were excluded from the scope of the “more 

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

that clause describes it broadly enough to include conservation 

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

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

(“Local governments must develop a local forest conservation 

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

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

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

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

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

(“Localities must adopt forest conservation programs that meet or 

exceed State standards, following guidelines and criteria 

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

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

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

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

legislation, the Chairman of the House Environmental Matters 

Committee wrote to our Office objecting to the Department’s 
Gen. 120] 131

overzealous implementation of the Act in some respects, but had 

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

jurisdictions must submit adopted local programs at least as 

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

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

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

conservation thresholds from the scope of the “more stringent” 

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

local jurisdictions to be more stringent with respect to any aspect 

of the Act.3

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

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

jurisdictions that they could not adopt conservation thresholds 

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

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

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

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

on local program submittals and without elaborating on the 

interpretive grounds for its comment.4

 And while Secretary 

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

is contemporaneous and long-held, ultimately that interpretation 

must yield to the unambiguous language of the Act. Marriott 

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

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

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

we conclude above, the Act unambiguously allows local 

 

3

 The fiscal and policy notes accompanying subsequent amendments 

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

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

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

standards that developers must follow when designing a new project that 

affects forest land. Local governments are responsible for making sure 

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

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

Policy Note at 2 (same). 

4

 An agency interpretation that is adopted outside of a contested case 

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

degree of deference because it is untested by the administrative and 

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

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

Committee review for purposes of determining whether a proposed 

regulation complies with the legislative intent of the statute under which 

it is to be promulgated). 
132 [100 Op. Att’y 

jurisdictions to enact forest conservation programs with 

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

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

history that excludes conservation thresholds and reforestation 

ratios from that grant of authority. 

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

indicating that the General Assembly understood the conservation 

thresholds to be something other than “standards or requirements” 

or that localities were not permitted to adopt more stringent 

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

common and everyday meaning, are clear and unambiguous and 

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

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

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

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

“Local governments with planning and zoning authority are 

required to develop local forest conservation programs that meet or 

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

of the Attorney General at 75.5

2. The Forest Conservation Act Allows, But Does Not

Require, a Local Jurisdiction to Adopt a Local 

Program Reflecting a “No Net Loss” of Forest. 

As discussed above, the bill that became the Forest

Conservation Act originally included a legislative finding that 

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

policy: 

It is the intent of the General Assembly that 

this Forest Conservation Act is to be 

implemented and coordinated with other State 

and local conservation, reforestation, and 

afforestation programs, statutes, and 

regulations as one part of a comprehensive 

strategy to achieve no net loss of forest cover 

in the State of Maryland. 

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

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

against reading the statute to allow local jurisdictions to adopt a 

 

5

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

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

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

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

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

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

land use and development processes. Rejecting the first does not 

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

Legislature left in place the language authorizing a local 

jurisdiction to enact local programs that are more stringent than the 

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

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

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

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

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

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

Department to cooperate with forestry-related stakeholder groups 

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

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

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

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

report supported the DNR Sustainable Forestry Council’s 

recommendation that the State implement initiatives that ensure 

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

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

recommendation, the Legislature enacted the Forest Preservation 

Act of 2013. 

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

encourage the retention and sustainable management of forest 

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

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

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

also makes various changes aimed at preserving forest land in the 

State. It focuses on protecting forests through planning, 

encouraging private forest management through expanded tax 

credits, increasing flexibility in reforestation efforts, increasing 

forest fire responsibility, and improving compliance with the 

earlier Forest Conservation Act. 

The 2013 legislation does not speak to the stringency of the 

requirements or standards that a local jurisdiction may include 

within its forest conservation program. Nor does it compel or 

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

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

possible implication that might have been created by the 

Legislature’s deletion of the “no net loss” finding in 1991. Given 
134 [100 Op. Att’y 

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

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

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

net loss” policy. 

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

a Program that is More Stringent than the Forest 

Conservation Act, But the Department May Inquire Into 

Whether the Local Program is Consistent with, and Meets 

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

Your last question asks whether the Department may require 

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

more stringent than the Forest Conservation Act or the DNR 

regulations or model ordinance that implement it. Where the 

requirement clearly meets and is simply more stringent than a 

corresponding State requirement, the answer is no and the inquiry 

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

a program that is more stringent than State law. 

But it is not always this straightforward; a jurisdiction might 

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

a way that makes the relative stringency of the local program 

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

designed to be implemented as part of a broader development 

review process, the local government may use terminology than is 

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

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

order to make a determination as to whether the ordinance is 

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

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

jurisdiction to explain how different aspects of its proposed 

program compare to the State law. 

III 

Conclusion

Local jurisdictions may enact forest conservation programs 

that are more stringent than the Forest Conservation Act. 

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

of its planning and zoning powers, may require that development 

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

provide levels of reforestation and afforestation that are more 

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

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

elect to do so, it is not required to justify the greater level of 
Gen. 120] 135

protection, but the Department may require the local jurisdiction to 

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

and standards of the Act. 

Brian E. Frosh 

Attorney General of Maryland 

Adam D. Snyder 

Chief Counsel, Opinions & Advice