Natural Resources Forest Conservation Act – Whether the Act Permits Forest Mitigation Banks that Merely Preserve Existing Forest, Rather than Create or Restore Forest ( 2020 )

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-conser-
vation-and-trees/ forest-conservation-banks/. Frederick County’s
program also seems to permit the creation of a “bank” from “existing
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).
forest.” See 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