Does a Maryland county with zoning authority have to adopt its own forest conservation program, or can it let the state handle it?

Plain-English summary

Carroll County's Board of Commissioners asked the Attorney General to settle a question about Maryland's newly enacted Forest Conservation Act: did a local government with its own planning and zoning authority have to develop and adopt its own local forest conservation program, or could it instead simply let the state's Department of Natural Resources (DNR) run the program in the county's place? The county's own attorney had already concluded the program was mandatory, and the county asked the Attorney General to confirm that reading.

The Attorney General agreed the program was mandatory. The opinion worked through several statutory provisions using "shall" language (develop, submit, and adopt a program) and concluded that a separate provision, saying DNR would take over "review and approval of all forest conservation plans" if a local government failed to adopt its own program, was not an alternate menu option but a backstop for noncompliance, reinforced by a tight statutory timeline (regulations due by the end of 1991, proposed local programs due by April 30, 1992, adopted programs due by the end of 1992) built around ensuring some form of forest protection was in place by January 1, 1993 regardless of what any individual county did. The opinion also pointed out that the statute allowed only one specific opt-out, a municipality assigning its obligation to its county, and that when the legislature really did want to give a local government the choice between running its own program or deferring to the state (as it did elsewhere, in the nontidal wetlands law), it said so explicitly, in contrast to the Forest Conservation Act's mandatory language.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a Maryland county with zoning authority have to adopt its own forest conservation program under the 1991 Forest Conservation Act, or could it defer to the state? The county had to adopt its own program. The opinion concluded that NR §5-1603's "shall develop," "shall submit," and "shall review and amend" language created a mandatory duty, and that a county could not instead simply let DNR administer the program in its place.

What happened if a county failed to submit or adopt a local forest conservation program by the statutory deadline? DNR would take over review and approval of forest conservation plans in that jurisdiction. The opinion characterized this as a "residual safeguard" ensuring some forest protection existed even in the worst case of local noncompliance, not a lawful alternative a county could choose upfront instead of adopting its own program.

Were there any circumstances where a local government could lawfully hand off its forest conservation obligations to someone else? Yes, but narrowly. The opinion identified only one statutory opt-out: a municipality with planning and zoning authority could assign its obligations to the county it was located in, with DNR's and the county's concurrence, by December 31, 1991. No provision let a county assign its obligations up to the state.

How did the opinion know the legislature meant this to be mandatory rather than optional? The opinion pointed to the statute's tight compliance deadlines, the fact that DNR's regulatory role was framed as guiding and backing up local programs rather than running a primary state program, and a contrast with other Maryland environmental statutes (like the nontidal wetlands law) where the legislature explicitly gave counties the choice between a local program and state administration, a choice-of-language pattern absent from the Forest Conservation Act.

Background and statutory framework

The Forest Conservation Act, Chapter 255 of the Laws of Maryland 1991 and codified as Subtitle 16 of Title 5 of the Natural Resources Article, set conservation thresholds, afforestation and reforestation standards, and forest stand delineation and conservation plan requirements for development on tracts of 40,000 square feet or more. NR §5-1603 used "shall" throughout: local governments with planning and zoning authority were to develop a local program, submit it to DNR by April 30, 1992, and have it adopted (meeting or exceeding the statute's standards) by December 31, 1992, and to review and amend any local ordinances inconsistent with the act. The opinion agreed with Carroll County's own attorney that this "shall" language, read together with the statute's fast-moving compliance calendar (DNR regulations due by the end of 1991, review-and-approval expected within two months of each local submission, and a January 1, 1993 date after which the forest stand delineation requirement kicked in regardless of local program status), reflected a legislative judgment that local governments were the primary implementers of the program, with the state stepping in only as a fallback.

The opinion drew a comparative-statutory argument to reinforce this reading: elsewhere in the Natural Resources Article, when the General Assembly wanted to give counties a genuine choice between running their own program or deferring to the state, as under the nontidal wetlands protection provisions of NR §8-1204(a), it used permissive language ("may delegate," a county "may" choose to enact its own program) rather than "shall." The Forest Conservation Act's structure, DNR regulations aimed mainly at training local officials and providing model ordinances, plus a single narrow assignment option for municipalities (not counties), showed no comparable optionality for counties. The opinion also noted the act's own Fiscal Note assumed the state's cost of running local programs in place of noncompliant counties was a contingent, exceptional cost, not the anticipated default, further supporting a mandatory reading of the local adoption duty.

Citations and references

Statutes:

• Chapter 255 of the Laws of Maryland 1991, enacting the Forest Conservation Act
• NR §5-1601(b) and (dd), defining "afforestation" and "reforestation"
• NR §5-1602(a), the act's general applicability threshold (40,000 square feet or more)
• NR §5-1602(b) and (b)(10), exemptions from the act, including the large-forest-cover county exemption
• NR §5-1603, §5-1603(a), (a)(1), (a)(3), (b), (c), (c)(2), and (d), the core local program development, submission, adoption, and default-to-DNR provisions
• NR §5-1604(a) and (e), the forest stand delineation requirement and DNR oversight after local program adoption
• NR §5-1605(c)(9), the two-year management agreement requirement
• NR §5-1606 and §5-1606(a)(3), conservation thresholds and afforestation levels
• NR §5-1607, mitigation and conservation easement requirements
• NR §5-1608(a) and (b), concurrent review and forest conservation plan approval requirements
• NR §5-1609(a) and (a)(1), DNR's regulatory duties
• NR §8-1204(a), the nontidal wetlands program delegation provision cited for comparison
• NR §8-9A-06, the Flood Control and Watershed Management program cited for comparison
• NR §5-103, DNR's role reviewing forest conservation plans for state projects

Cases: None cited in this opinion.

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf (this opinion appears at printed page 127 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

NATURAL RESOURCES

Forest Conservation Act - Local Governments Are Required to Adopt Forest Conservation Programs

April 29, 1992

The Honorable Donald I. Dell
The Honorable Elmer Tippy
The Honorable Julia W. Gouge
Board of Commissioners of Carroll County

You have requested our opinion whether the Forest Conservation Act, codified as Subtitle 16 of Title 5 of the Natural Resources Article ("NR" Article), mandates that a local government having planning and zoning authority adopt a forest conservation program, or whether the act gives the local government the option of deferring to the State's implementation of the forest conservation program in that jurisdiction. You have included with your request for an opinion the advice of the County Attorney, concluding that the statute requires these local governments to adopt a forest conservation program. Memorandum from County Attorney Charles W. Thompson, Jr. to County Commissioners of Carroll County (March 26, 1992).

For the reasons stated below, we agree with the County Attorney's conclusion. The Forest Conservation Act mandates that a local government adopt a local forest conservation program, consistent with the intent, requirements, and standards of the act.

I

Summary of Forest Conservation Act

The Forest Conservation Act, Chapter 255 of the Laws of Maryland 1991, establishes a complex program including conservation thresholds, afforestation and reforestation standards, and requirements for forest stand delineation and for forest conservation plans.1 The statutory requirements are generally applicable to any public or private subdivision and to any grading or sediment control permit by any person, including a unit of State or local government, on areas 40,000 square feet or more. NR §5- 1602(a).2

Under the act, minimum levels or "thresholds" are established, based on designated land use categories, for the conservation of trees on certain tracts of land where development is scheduled to occur. NR §5-1606. Under specified circumstances, if retention of existing forest is not possible, the loss of forest must be mitigated by either on-site or off-site planting. NR §5-1607. Where little or no tree cover exists, minimum "afforestation" levels must be met to create a new forest. See NR §5- 1606(a)(3). To ensure the success of reforestation and afforestation projects, a binding two-year management agreement is required for maintenance and protection of planted areas. NR §5-1605(c)(9). Conservation easements, deed restrictions, and other techniques for management, preservation, and retention of forest are to be provided. NR §5-1607.

II

County Attorney's Advice

The advice given to you by the County Attorney included an analysis of the language in NR §5-1603(a), which provides that "[a] unit of local government having planning and zoning authority shall develop a local forest conservation program." (Emphasis supplied.) The advice also referred to two other provisions using the mandatory phrase "shall submit": NR §5-1603(a)(1), which states that all units of government with planning and zoning authority "shall submit" to the Department of Natural Resources ("DNR") a proposed forest conservation program by April 30, 1992; and NR §5-1603, which provides that local governments "shall submit to the Department, by December 31, 1992, their adopted forest conservation program which meets or is more stringent than the requirements and standards of this subtitle." Finally, the County Attorney cited NR §5-1603(c)(2), pursuant to which a local government "shall review and amend" all "local ordinances, policies and procedures that are inconsistent with the intent and requirements of the" Forest Conservation Act. From these four provisions of the Forest Conservation Act, the County Attorney concluded "that this program is mandatory."

The County Attorney did observe that some doubt on the matter might be thought to arise from NR §5-1603(d), which provides that a local government's failure to submit a proposed local forest conservation program or failure to adopt one by December 31, 1992 "shall result in the Department's assumption of review and approval of all forest conservation plans within the jurisdiction of that local authority." If the consequence of a failure to submit or adopt a plan is that DNR undertakes the task, some might argue that the local government's duty is not really mandatory. After a review of the legislative history of the Forest Conservation Act and DNR's interpretation of the requirements for local program adoption, however, the County Attorney concluded that there "can be little doubt that this program was intended to be mandatory." We agree.

III

Analysis

We concur in the County Attorney's analysis that the four pertinent statutory provisions in NR §5-1603 create the obligation of a local government to develop, submit for DNR's review and approval, and adopt a local forest conservation program. The wording of NR §5-1603(d), whereby the failure of a local government to adopt a forest conservation program "shall result in the Department's assumption of review and approval of all forest conservation plans" in that jurisdiction, does not, in our view, create an option for the local jurisdiction. The Forest Conservation Act reflects a legislative judgment that the forest conservation program is best implemented and administered at the local level. The State's administration of the forest conservation program in a local jurisdiction appears to be merely a residual safeguard, to assure some program implementation in the worst case, should a local government not comply with the statutory requirement.

Our conclusion that NR §5-1603(d) creates a safety net and not an alternative program is evident from the legislative deadlines imposed by the statute. Implementation under the act is on a fast track: DNR was required to adopt regulations by December 31, 1991, NR §5-1609(a); proposed local programs are due on April 30, 1992, NR §5-1603(a)(1); DNR is expected to review and approve or disapprove each program within two months of its submission, NR §5-1603(b); and local programs are to be adopted by December 31, 1992, NR §5-1603(c). All of these dates culminate in the crucial compliance date of January 1, 1993 (or even earlier if a local government has acted sooner):

After December 31, 1992, or after the date on which a local program has been adopted under §5- 1603 of this subtitle, whichever occurs first, a person making application for subdivision or grading or sediment control permits on areas greater than 40,000 square feet shall submit a forest stand delineation ....

NR §5-1604(a).

The General Assembly recognized the importance of establishing an early and specified compliance date to assure that the goal of the statute, the conservation of forest, can be achieved. If a local government fails in its obligation to develop a forest conservation program, the residual State program ensures that development and construction plans will be subject to some forest conservation requirements after December 31, 1992, despite the absence of a local program.

Other statutory provisions also disclose a legislative intent to mandate local programs. For example, the only exception to the program adoption requirement is that a municipality with planning and zoning authority may, with the concurrence of DNR and the county within which it is located, "assign its obligations under this subtitle to the county by December 31, 1991." NR §5-1603(a)(3) (emphasis supplied). No comparable provision authorizes a county to "assign" its programmatic obligations to the State.

Indeed, the General Assembly normally spells out a decision to allow a local government to choose between its own or a State program. For example, NR §8-1204(a) provides that DNR "may delegate all or part of its authority under this subtitle to any county that enacts a nontidal wetland protection program that meets at least the minimum standards adopted by the Department." A county in that instance may choose to adopt a local program by enacting a program as stringent as the State program, but it is not told that it "shall" do so, the language that appears in the local program description in the Forest Conservation Act. See also NR §8-9A-06 (Flood Control and Watershed Management program).

Local program development under the Forest Conservation Act is not a delegation system. Indeed, there is no primary State program. Under NR §5-1609(a)(1), DNR is required to adopt regulations establishing:

(i) Standards of performance required in forest stand delineations and forest conservation plans including the submittal process;

(ii) Criteria for local forest conservation programs; and

(iii) Implementation processes for the Department's administration in the absence of a local forest conservation program;

(2) Assist and guide local authorities in the development of their local forest conservation program by providing:

(i) Training of local officials; and

(ii) A model local government ordinance that meets the requirements of this subtitle; ....

The major portion of DNR's regulations are thus to be aimed at guiding local governments in fashioning and implementing their local programs. The State's own "implementation" role is one of back-up "in the absence of a local forest conservation program."

In addition, the methodology by which the Forest Conservation Act requirements are imposed lends support to the conclusion that local program development is mandatory, not optional. To achieve the requirement that certain percentages of a tract be retained or that afforestation or reforestation levels be accomplished, a person making application for subdivision or grading or sediment control permits on areas greater than 40,000 square feet must submit a forest stand delineation prepared by a licensed forester, licensed landscape architect, or other qualified professional. NR §5-1604(a). Before the approval of the final subdivision plan or the issuance of the grading or sediment control permit, the applicant must have an approved forest conservation plan based on the forest stand delineation and containing other requirements, such as methods for management and preservation of retained forest and reforested areas. NR §5-1608(b).

These requirements do not exist in isolation. Rather, the act recognizes that the forest conservation program is an integral part of the local governmental process for the review and approval of any development project. Thus, NR §5-1608(a) states that "[t]he review of the forest conservation plan shall be concurrent with the review process of the State or local authority for the subdivision plan, or the grading or sediment control permit, whichever may be submitted first."3 Since the subdivision development review process is a local planning and zoning function, a forest conservation program prepared at the local level will come closest to achieving the goals of the concurrent review requirement of NR §5- 1608(a).

Finally, the County Attorney quoted the Fiscal Note accompanying the Forest Conservation Act, which observed that "[i]ncreased expenditures do not include costs that would be incurred if DNR assumes responsibility for developing and/or administering local programs because it will not be known if DNR has to assume such responsibilities until December 31, 1992." This discussion in the Fiscal Note reflects a legislative view that program implementation is primarily a duty of local government, while the State program is a limited, interstitial one designed merely for the exceptional case of local program failure.4

IV

Conclusion

We concur in the County Attorney's conclusion that the Forest Conservation Act requires Carroll County, like every other nonexempt local government with planning and zoning authority (except municipalities assigning the obligation to their counties), to develop and adopt a forest conservation program.5 The statute does not permit a county to choose at its option either to adopt a program or, in the alternative, to allow the State's program to go into effect.

J. Joseph Curran, Jr.
Attorney General

Thomas A. Deming
Assistant Attorney General

Pamela P. Quinn
Assistant Attorney General
Jack Schwartz
Chief Counsel
Opinions & Advice

1
"Afforestation" refers to the establishment of a tree cover on land not now forested; "reforestation" refers to "the creation of a biological community dominated by trees and other woody plants ..." NR §5-1601(b) and (dd).

2
NR §5-1602(b) lists a number of activities to which the act does not apply. The act is also inapplicable to "[a] county that has and maintains 200,000 acres or more of its land area in forest cover." NR §5-1602(b)(10). This exception applies to Garrett and Allegany Counties.

3
The reference to the State appears to be a recognition of the State's substituted role in the absence of a local program and also a recognition of the State's function of reviewing forest conservation plans for State projects. See NR
§5-103.

4
DNR also has certain oversight responsibilities after a local government adopts its program. See NR §5-1604(e).

5
See note 2 above.