Does Maryland's Forest Conservation Act apply to a local government building project in Allegany or Garrett County, even if the project uses state funding, given that those counties are exempt from the Act for having a lot of existing forest cover?

Plain-English summary

Delegate George C. Edwards asked the Attorney General whether the Forest Conservation Act applied to local government projects in Allegany and Garrett counties, prompted by a new Garrett County Health Department facility then under construction. Both counties qualified for a statutory exemption from the Act because they each maintained more than 200,000 acres of land in forest cover, but the Department of Natural Resources (DNR) had taken the position that qualifying local development projects in those counties were still subject to the Act if they used State funds.

The opinion sided with Delegate Edwards against DNR's position. It concluded that the exemption in NR §5-1602(b)(10), which applies to "the provisions of [the Forest Conservation Act]" for a county with the requisite forest cover, exempts qualifying local government projects entirely, State-funded or not, because the statutory text is unqualified and the 1991 legislative history confirms the Legislature meant to exempt Allegany and Garrett counties from "all requirements" once it decided to shift most non-highway projects out of the older State-funding-based statute and into the new, more detailed Act. It found DNR's implementing regulations, while not a model of clarity, could be read consistently with this broad exemption and could not lawfully narrow a clear statutory exemption even if they were read otherwise. The one exception: highway construction projects in those counties remain subject to a separate, narrower forest conservation statute, NR §5-103, which was never folded into the county-cover exemption.

Currency note

This opinion was issued in 2001. 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, exemption threshold, or regulation mentioned here, particularly since the opinion itself notes the Act was amended multiple times between 1993 and 1997, and further changes may have occurred since 2001.

Common questions

Did using state money to build a facility in Garrett or Allegany County trigger the Forest Conservation Act's requirements?
No, according to this opinion. It concluded the county-wide exemption for counties with 200,000 or more acres of forest cover applies regardless of whether State funds are involved in a particular local project, rejecting DNR's contrary interpretation that State-funded local projects remained subject to the Act.

Why did only Allegany and Garrett counties get this exemption?
The opinion explained that when the Legislature created the exemption in 1991, only those two counties exceeded the 200,000-acre forest cover threshold (Allegany had 212,459 acres and Garrett had 294,843 acres at the time), and legislative committee records described the intended effect as exempting those specific counties "from all requirements" because of their significant forest acreage.

Was there any local government project in those counties that still had to follow forest conservation rules?
Yes. The opinion concluded that highway construction projects in Allegany and Garrett counties remained subject to a separate, narrower statute, NR §5-103, because the 1991 legislation that created the Forest Conservation Act and its county exemption specifically carved highway projects out and left them under that older law rather than folding them into the broader exemption.

Background and statutory framework

Before 1991, Maryland's forest conservation obligations were governed by NR §5-103, first enacted in 1987 to require State construction projects to minimize tree clearing and fund reforestation, then extended in 1989 to cover any project, including local government projects, that used State funding. In 1991, the General Assembly enacted the comprehensive Forest Conservation Act (Chapter 255, Laws of Maryland 1991), which applied afforestation, conservation, and reforestation requirements to subdivision plans and grading or sediment control permits covering 40,000 square feet or more, extended those requirements to private entities as well as government, and required local governments with planning and zoning authority to adopt their own local forest conservation programs subject to DNR approval under NR §5-1603. At the same time, the 1991 legislation narrowed NR §5-103 to apply only to highway construction projects and created a series of exemptions from the new Act under NR §5-1602(b), including the exemption at issue here for counties maintaining 200,000 or more acres of forest cover, NR §5-1602(b)(10).

The opinion traced the exemption's legislative history through Senate Bill 224 (1991), noting that the original bill contained no county-forest-cover exemption at all, and that the exemption was added by House Environmental Matters Committee amendments alongside the decision to limit NR §5-103 to highway projects and shift other local and State projects to the new Act, with committee work papers describing the amendment's purpose as exempting Allegany and Garrett counties "from all requirements." It then analyzed DNR's implementing regulations under COMAR Title 8, Subtitle 19, including a regulation restating the statutory exemption (COMAR 08.19.01.04A(12)) and two others stating the State forest conservation program applies to State-funded county projects (COMAR 08.19.01.04B(2)(b) and COMAR 08.19.04.01A(1)(b)), concluding those provisions could be harmonized with, rather than override, the broader county-wide statutory exemption.

Citations and references

Statutes:
- NR §5-103, §5-103(a)(2)(ii), and §5-103(a)(4), the original 1987/1989 forest conservation statute, narrowed in 1991 to apply only to highway projects
- NR §5-1601(b), (dd), (ff), and (k)(1), defining "afforestation," a covered "person," "reforestation," and "forest" under the Forest Conservation Act
- NR §5-1602(a), applying the Act's requirements to qualifying subdivision, grading, and sediment control activities by State, local, and private actors
- NR §5-1602(b)(1)-(11), and specifically (b)(4), (b)(6), and (b)(10), the Act's list of exemptions, including the forest-cover-threshold exemption for Allegany and Garrett counties
- NR §5-1603, §5-1603(a)-(c), (d), and (e), requiring and governing local forest conservation programs and DNR's review authority
- NR §5-1604 and §5-1605, requiring forest stand delineations and forest conservation plans
- NR §5-1606, (a), and (b)-(e), the Act's afforestation and reforestation formulas
- NR §5-1607, governing preferred methods and priorities for afforestation and reforestation
- NR §5-1608(a) and (c), governing plan review timing and monetary penalties for noncompliance
- NR §5-1609(a)(1) and (a)(1)(i)3, DNR's regulatory and State-level fallback authority
- NR §5-1610, the in-lieu payment option into the State or a local forest conservation fund
- NR §5-1612(a)-(c) and (d), DNR and local government enforcement authority, including civil actions
- COMAR 08.19.01.04A(12) and 08.19.01.04B(2)(b); COMAR 08.19.02.01B and 08.19.02.01D; and COMAR 08.19.04.01A(1)(b) and (2), DNR's implementing regulations addressing the county exemption and State-funded local projects
- Chapter 610, Laws of Maryland 1987, and Chapter 819, Laws of Maryland 1989, the original enactment and extension of NR §5-103
- Chapter 255, Laws of Maryland 1991, enacting the Forest Conservation Act and the county forest-cover exemption
- Chapter 489, Laws of Maryland 1993; Chapter 556, Laws of Maryland 1994; Chapter 630, Laws of Maryland 1995; and Chapter 559, Laws of Maryland 1997, subsequent amendments to the Act noted as not affecting the county exemption

Cases:
- Baltimore Gas & Elec. Co. v. Public Serv. Comm'n, 305 Md. 145, 501 A.2d 1307 (1986), on the deference owed to a longstanding contemporaneous agency interpretation
- Cooper v. Sacco, 357 Md. 622, 745 A.2d 1074 (2000), on ascertaining and carrying out the true intention of the Legislature
- Rose v. Fox Pool Corp., 335 Md. 351, 643 A.2d 906 (1994), on beginning statutory analysis with the statute's plain language
- Morris v. Prince George's County, 319 Md. 597, 573 A.2d 1346 (1990), on consulting legislative history to determine legislative purpose
- Kaczorowski v. City of Baltimore, 309 Md. 505, 525 A.2d 628 (1987), on considering external manifestations of legislative purpose
- Fogle v. H & G Restaurant, 337 Md. 441, 654 A.2d 449 (1995), and Maryland State Police v. Warwick Supply & Equipment Co., 330 Md. 474, 624 A.2d 1238 (1993), on agency regulations needing to be consistent with the letter and spirit of the governing statute
- Brzowski v. Maryland Home Improvement Comm'n, 114 Md. App. 615, 691 A.2d 699 (1997), on an administrative practice being entitled to no weight if inconsistent with the statutory scheme

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/2001/86oag72.pdf

Original opinion text

72 [86 Op. Att'y

                NATURAL RESOURCES

F OREST C ONSERVATION A CT - L OCAL G OVERNMENT P ROJECTS
E XEMPT F ROM A CT IN C OUNTIES T HAT H AVE T HRESHOLD
L EVEL OF F OREST C OVER

                       March 13, 2001

The Honorable George C. Edwards
House of Delegates

  You have requested our opinion concerning the application of

the Forest Conservation Act to local government projects in
Allegany and Garrett counties.[1] Specifically, you ask whether the
use of State funds to support such projects renders them subject to
the Act despite a statutory exemption for counties with a certain
level of forest cover.

  For the reasons set forth below, we conclude that the Forest

Conservation Act does not apply to local government projects - even
those involving State funds - in counties exempt from the Act.
However, certain forest conservation requirements in a separate
statute apply to highway projects, regardless of location.

                               I

             Forest Conservation Legislation

A. State Law Before 1991

  Prior to enactment of the Forest Conservation Act, State-

mandated efforts to compensate for the impact of development on
forests were directed solely to projects underwritten by State funds.
Legislation enacted in 1987 obligated a State agency that undertook
a construction project to minimize the clearing of trees and, if a
threshold area of forest was cleared, to undertake or underwrite a
reforestation project. Chapter 610, Laws of Maryland 1987, then
codified as Annotated Code of Maryland, Natural Resources Article
("NR"), §5-103. Two years later, those obligations were extended
to "any other person who uses State funding and performs any
construction activity with the State funding." Chapter 819, Laws of
Maryland 1989, amending NR §5-103(a)(2)(ii). The provisions of
this forest conservation statute thus applied to State-funded
construction projects throughout the State.[2]

B. 1991 Legislation

  In 1991, the General Assembly again revisited the State's

forest conservation law to enact a more comprehensive strategy for
preservation of the State's forest cover. Chapter 255, Laws of
Maryland 1991. The 1991 legislation extensively revised the
existing forest conservation statute, both extending its application in
certain respects and limiting its reach in others. In addition, that
legislation enacted an extensive new regulatory scheme - commonly
referred to as the Forest Conservation Act.

        1.    Revision of NR §5-103

  The 1991 legislation extended the existing statute to local

government projects, even if State funding was not used, and raised
the ceiling on required reforestation payments significantly.[3]
Chapter 255, §2, Laws of Maryland 1991, amending NR §5-103. On
the other hand, the breadth of that statute was substantially limited:
it now applied only to highway construction projects. Id., §2. Other
types of projects were to be governed by the new Forest
Conservation Act ("the Act"). Id., §1, enacting NR §5-1601 et seq.

        2.    Forest Conservation Act

  The Forest Conservation Act is a comprehensive effort to stem

the loss of the State's forest cover.[4] The Act establishes
afforestation,[5] conservation, and reforestation[6] requirements for
subdivision plans and projects that require a grading or sediment
control permit involving areas of 40,000 square feet or more. NR
§5-1602(a). Unlike the prior law, application of these requirements
is not keyed to State funding of a project. Moreover, the
requirements apply not only to units of State and local government,
but to private entities as well. NR §§5-1601(dd) and 5-1602(a).

   Under the Act, a person seeking a permit for a subdivision or

a grading or sediment control permit must arrange for a licensed
forester, licensed landscape architect, or other qualified professional
to prepare a forest stand delineation which will be used during the
preliminary review process to determine the most suitable and
practical areas for forest conservation. NR §5-1604. Following
approval of the forest stand delineation, the applicant must arrange
for a qualified professional to prepare a proposed forest conservation
plan. Among other requirements, the forest conservation plan must
include a map of the site, data relating to the site and conservation
requirements, an afforestation or reforestation plan, and a two-year
management agreement addressing how areas designated for
afforestation or reforestation will be maintained. NR §5-1605.

  Afforestation or reforestation requirements are governed by

formulas set forth in the Act. NR §5-1606.[7] The statute also
provides a sequence of preferred methods of afforestation and
reforestation, retention and protection priorities, and priorities for
afforestation and reforestation efforts. NR §5-1607. Review of the
forest conservation plan is to be concurrent with review of the
subdivision plan or grading or sediment control permit application.
NR §5-1608(a).

  The Act also provides an alternative in situations where

afforestation or reforestation cannot reasonably be accomplished
either on-site or off-site. In lieu of planting, a payment equal to $.10
per square foot ($4356 per acre) of the area of required planting may
be made into the State Forest Conservation Fund or a local forest
conservation fund. NR §5-1610.

  Local governments with planning and zoning authority are

required to develop local forest conservation programs that meet or
exceed standards under the Act. NR §5-1603. Thus, the Act makes
forest conservation efforts "an integral part of the local
governmental process for the review and approval of any
development project." 77 Opinions of the Attorney General 127, 132
(1992).

  The Legislature charged the Department of Natural Resources

("DNR") with adopting regulations and developing guidance
manuals to implement the Act. NR §5-1609(a)(1). DNR was also
to develop criteria for local forest conservation programs, a model
local ordinance, and training programs for local officials. Id. Local
forest conservation programs are subject to approval and periodic
review by DNR. NR §5-1603(a)-(c), (e). If a local government fails
to adopt an approved forest conservation program, DNR must
develop a State-level process to review forest conservation plans for
that jurisdiction. NR §§5-1603(d), 5-1609(a)(1)(i)3.

  DNR and local governments that have adopted their own

programs are authorized to enforce the Act through administrative
proceedings, such as revocation of the approval of a forest
conservation plan and issuance of a stop work order. NR §5-
1612(a)-(c). If a person fails to comply with the Act, related
regulations, a forest conservation plan, or an associated management
agreement, DNR or local authorities are to assess a monetary
penalty. NR §5-1608(c). Finally, DNR and local governments may
bring civil actions for injunctive relief or to impose civil monetary
penalties for ongoing violations. NR §5-1612(d).

        3.    Exemptions from Forest Conservation Act

  At the same time that the Legislature extended conservation

obligations generally to local government projects and private
development, it also created a series of exemptions from the Act.
See NR §5-1602(b)(1)-(11). Some of those exemptions simply defer
to other applicable laws governing conservation. For example,
highway construction projects subject to the revised NR §5-103 are
exempt from the Act. NR §5-1602(b)(1). Other exemptions reflect
policy decisions not to impose the Act's requirements on certain
activities. See, e.g., NR §5-1602(b)(4) (certain agricultural activity),
(b)(6) (maintenance of public utility rights-of-way).

  Most relevant to your inquiry is an exemption that pertains to

Allegany and Garrett counties. In particular, NR §5-1602(b)(10)
provides that "[t]he provisions of [the Forest Conservation Act] do
not apply to ... [a] county that has and maintains 200,000 acres or
more of its land area in forest cover." At the time the Act was under
consideration by the Legislature, only Allegany and Garrett counties
exceeded this threshold, with forest covers of 212,459 and 294,843
acres, respectively. See "Percent of Forested Acreage by County:
1990," Legislative files for Senate Bill 224 and House Bill 199
(1991). We understand that both counties continue to maintain the
acreage of forest cover required for this exemption.[8]

                                II

             DNR's Implementation of the Act

  DNR's regulations implementing the Forest Conservation Act

are codified in COMAR, Title 8, Subtitle 19. Chapter 1 of that
subtitle contains general provisions, including definitions of terms,
a description of the application of the Act, and exemptions. Chapter
2 addresses DNR's review and approval of local programs. Chapter
3 provides a model ordinance for local implementation of the Act.
Chapter 4 establishes the State Forest Conservation Program.
Chapter 5 governs forest conservation maintenance and management
agreements. Finally, Chapter 6 pertains to DNR's training and
enforcement responsibilities and sets forth the professional
qualifications necessary to prepare a forest plan delineation or forest
conservation plan.

  Significant for purposes of your inquiry are regulations that

pertain to local government projects, particularly those supported by
State funds. One such regulation essentially reiterates the statutory
exemption for counties that maintain at least 200,000 acres of forest
cover. It provides, in pertinent part, that "[t]he provisions of [Title
8, Subtitle 19] do not apply to ... [a] county that has and maintains
200,000 acres or more of its land area in forest cover and which has
met the provisions of COMAR 08.19.02.01B or D ...." COMAR
08.19.01.04A(12). The cross-reference to provisions in Chapter 2
of the regulations concerns exemption from the requirement to
prepare a local forest conservation program. One of those
provisions, COMAR 08.19.02.01D, identifies Allegany and Garrett
counties as two counties that fall within the exemption; the other
provision, COMAR 08.19.02.01B, specifies how other counties may
document eligibility for the exemption with DNR.

  Two other provisions of DNR's regulations state that the Act's

requirements apply to county projects, particularly those financed
with State funds. First, the same regulation that lists exemptions
later states that the State forest conservation program set forth in
Chapter 4 of the regulations applies to "any construction, project
plan, grading, or sediment control activity, except for an activity
regulated under [NR §5-103], on areas 40,000 square feet or greater
by ... [a] unit of county government...." COMAR
08.19.01.04B(2)(b).

  Second, another regulation states that the State forest

conservation program applies to "any construction, grading, or
sediment control activity, or subdivision or project plan [on areas
40,000 square feet or greater] by a ... [u]nit of county government,
municipal corporation, or other political subdivision which uses
State funds for that activity...." COMAR 08.19.04.01A(1)(b).

  We understand that DNR has taken the position that, while the

statute exempts counties with the requisite forest cover from the
obligation to enact a local conservation program, any qualifying
development activity by a local government in those counties is
subject to the Act if it involves the use of State funds.[9] You have
questioned that position.

                              III

                           Analysis

 The answer to your inquiry turns on the proper interpretation

of the exemption in NR §5-1602(b)(10) for counties with the
requisite amount of forest cover.

  The cardinal rule of statutory construction is to ascertain and

carry out the true intention of the legislature. See, e.g., Cooper v.
Sacco, 357 Md. 622, 629, 745 A.2d 1074 (2000). Analysis begins
with the statutory language itself. Rose v. Fox Pool Corp., 335 Md.
351, 359, 643 A.2d 906 (1994). "When the language of a statute is
plain and clear and expresses a meaning consistent with the statute's
apparent purpose, no further analysis ... is ordinarily required." Id.
However, one is not precluded from consulting legislative history to
determine legislative purpose. Id., citing Morris v. Prince George's
County, 319 Md. 597, 603-04, 573 A.2d 1346 (1990). Thus,
consideration may be given to "'external manifestations' or
'persuasive evidence' including ... amendments that occurred as it
passed through the Legislature, its relationship to earlier ...
legislation, and other material that fairly bears on the fundamental
issue of legislative purpose...." Kaczorowski v. City of Baltimore,
309 Md. 505, 514-15, 525 A.2d 628 (1987).

  Although an administrative interpretation is not binding on the

courts, a contemporaneous interpretation of a statute by an agency
charged with its administration will generally be accorded
substantial deference. Fogle v. H & G Restaurant, 337 Md. 441,
455, 654 A.2d 449 (1995); Baltimore Gas & Elec. Co. v. Public
Serv. Comm'n, 305 Md. 145, 161, 501 A.2d 1307 (1986). Of course,
an administrative practice is entitled to no weight if it is inconsistent
with the statutory scheme. Brzowski v. Maryland Home
Improvement Comm'n, 114 Md. App. 615, 634, 691 A.2d 699, cert.
denied, 346 Md. 238, 695 A.2d 1227 (1997). Moreover, agency
regulations must be consistent with the letter and spirit of the law
under which the agency acts. Fogle v. H & G Restaurant, 337 Md.
at 453; see also Maryland State Police v. Warwick Supply &
Equipment Co., 330 Md. 474, 481, 624 A.2d 1238 (1993).

A. Statutory Text

 The language of the exemption is simple and unqualified: "The

provisions of this subtitle [i.e., the Forest Conservation Act] do not
apply to ... [a] county that has and maintains 200,000 acres or more
of its land in forest cover." NR §5-1602(b)(10) (emphasis added).
This language leaves little doubt that the exemption pertains to the
entire Act. The only question concerning its application is whether
a particular county has the requisite amount of forest cover. The
legislative history of the Act confirms that the General Assembly
meant what it said.

B. Legislative History

  The Forest Conservation Act was introduced as an

Administration proposal during the 1991 legislative session. Senate
Bill 224/House Bill 199 (1991). Developed by a workgroup that
grew out of the Governor's Task Force on Trees and Forests in
Maryland, the bill was described as "a key component of a Statewide
strategy to achieve no net loss of forest cover." See Senate Economic
and Environmental Affairs Committee Floor Report, Senate Bill 224
(1991) ("Senate Floor Report"). In the original proposal, any
projects then subject to the existing forest conservation statute (NR
§5-103), including local government projects financed with State
funds, would have been exempt from the new Forest Conservation
Act. See Senate Bill 224, First Reader (1991). The bill did not
include any exemption based on the amount of existing forest cover
in a county.

  The Senate Economic and Environmental Affairs Committee

approved Senate Bill 224, with substantial amendments worked out
with the Administration. See Senate Floor Report. While those
amendments modified NR §5-103 in certain respects[10] and created
additional exemptions to the Forest Conservation Act, local
government projects financed with State funds remained subject to
NR §5-103 and exempt from the new Act. See Senate Bill 224,
Third Reader (1991). The bill as ultimately passed by the Senate and
referred to the House did not include a county exemption based on
forest cover.

 The House Environmental Matters Committee reported out

Senate Bill 224 with extensive amendments. Among other things,
those amendments limited application of the existing forest
conservation statute (NR §5-103) - and the corresponding
exemption from the new Forest Conservation Act ) to highway
projects. Those amendments also made clear that other State and
local government projects would become subject to the more
detailed provisions of the new Act. At the same time, however, one
of those amendments added a new exemption to the Act - the
exemption for counties with more than 200,000 acres of forest cover
that is now codified at NR §5-1602(b)(10). The intended effect of
this amendment, as described in the Committee's work papers, was
to "[exempt] counties (from all requirements) if they have significant
forest acreage (Allegany & Garrett)." Legislative history file for
Senate Bill 224 (1991).

 The floor report of the Environmental Matters Committee

made clear that, under its amendments, the new Act would apply "to
both State and local development projects, except for highway
projects," but that "counties that have and maintain 200,000 acres or
more of its [sic] land area in forest cover," particularly Allegany and
Garrett counties, would be exempt. Legislative file for Senate Bill
224.

 The amendments proposed by the Environmental Matters

Committee were approved by the full House. Senate Bill 224 passed
the House, and the Senate then concurred in the House amendments.
Upon approval of the Governor, Senate Bill 224 became Chapter
255, Laws of Maryland 1991.

C. Interpretation of DNR Regulations

 The regulations that DNR adopted shortly after passage of the

1991 legislation, which remain in effect, appear consistent with this
understanding of the exemption. At most, they are ambiguous. But
ambiguity in the regulations cannot support an interpretation
contrary to the evident legislative intent.

  The DNR regulations contain an exemption parallel to the

statutory exemption. COMAR 08.19.01.04A(12) provides that the
forest conservation regulations do not apply to a county that has
200,000 acres or more of its land area in forest cover, if the
provisions of COMAR 08.19.02.01B or D are met. By its own
terms, the regulation exempts those counties that meet the forest
cover threshold from the entire subtitle - that is, all of the
regulations implementing the Forest Conservation Act. This
regulation thus appears to simply reiterate the statutory exemption
with an added proviso that COMAR 08.19.02.01B or D also must be
satisfied.

  COMAR 08.19.02.01 B and D describe the circumstances

under which a county is exempt from the obligation to adopt a local
forest conservation program. In particular, COMAR 08.19.02.01D
provides that Allegany and Garrett counties, and municipal
corporations within the two counties, are exempt from the
requirement that they adopt local forest conservation programs as
long as the respective county continues to meet the 200,000 acre
threshold. COMAR 08.19.02.01B states how other counties may
qualify for that same exemption. Thus, those provisions do not
narrow the exemption. Literally read, they simply require that a
county demonstrate that it meets the 200,000 acre threshold to be
exempt from the local program requirement and, as a result, be
exempt from the rest of DNR's regulations under the Act as well.
While the regulation is not a model of clarity, this literal reading is
consistent with the statutory language and the legislative history.

  A less literal reading of the regulation might construe the

cross-references to the chapter concerning local forest conservation
programs to indicate an intent by the drafter of the regulation to
restrict the scope of the exemption to the obligation to adopt a local
forest conservation program.[11] However, it would be beyond the
agency's authority to attempt by regulation to truncate the statutory
exemption.[12]

 As noted above, two provisions of the regulations affirmatively

declare that the State forest conservation program applies to county
agencies and county projects underwritten by State funds. COMAR
08.19.01.04B(2)(b); COMAR 08.19.04.01A(1)(b). However, neither
of those provisions explicitly qualifies the exemption for those
counties with extensive forest cover; both can be read in harmony
with it. First, COMAR 08.19.01.04B(2)(b) reiterates the general
statement in NR §5-1602(a) that the Forest Conservation Act applies
to certain projects of both State and local governments. Notably, the
same statutory section and regulation both contain parallel
recitations of the numerous exemptions from the Act. Read together
with the forest cover exemption, these provisions simply recite the
obligation of those local governments that do not qualify for that
exemption.

  Second, COMAR 08.19.04.01A(1)(b) states that the State

forest conservation program applies to certain local government
projects financed with State funds. This regulation can likewise be
harmonized with the county-based exemption. This regulation
answers a question not specifically addressed by the statute: whether
the State program or the pertinent local forest conservation program
governs a local project undertaken with State funds. Thus, for those
counties to which the Act applies, the State forest conservation
program, rather than the local program, governs such projects.[13]

 Neither of these regulations purports to qualify the broad

county-based exemption that appears in both the statute and the
regulations. Read together with the regulatory exemption that
exempts qualifying counties from the entire subtitle, these provisions
simply do not apply to a county with the requisite forest cover.

D. Summary

 The text of the statute states that counties with a certain amount

of forest cover are exempt from the entire subtitle - that is, the
Forest Conservation Act. It does not confine the exemption to the
obligation to create a local forest conservation program. Nor is there
any evidence in the legislative record of a legislative intent,
unexpressed in the statute itself, to apply the Act to local government
projects financed with State funds in otherwise exempt counties.

   Nor has there been a longstanding legislative policy to tie the

local receipt of State financial assistance to compliance with the
State's forest conservation law. Indeed, the initial 1987 version of
the State forest conservation law did not pertain to local projects at
all. It is true that, as a result of 1989 amendments to NR §5-103,
local government projects supported by State funds became
generally subject to the forest conservation requirements of that
statute, regardless of location. However, it is also true that two years
later the Legislature revamped that approach, retaining regulation of
local highway projects in NR §5-103, shifting regulation of other
local projects to the more detailed and complex regime of the new
Act, and exempting altogether counties with a certain level of
existing forest cover.

  It is not the role of an Attorney General's opinion to pass on

whether the legislative decision to create a blanket exemption for
certain counties was wise policy or represents sound stewardship of
State resources. Rather, it is our role to discern the judgment that the
Legislature made. The enactment of a comprehensive strategy for
maintaining the State's forest cover evidently involved compromise
and difficult policy judgments. One such judgment was that the new
Act should not apply in those counties that met or exceeded a forest
cover threshold of 200,000 acres. Therefore, in our view, DNR
lacks authority to apply the State Forest Conservation Program to a
local project - even one involving State funding - if the county
qualifies for the statutory exemption.[14]

                              IV

                         Conclusion

 Local government projects in counties that maintain 200,000

acres or more in forest cover are exempt from the Forest
Conservation Act, regardless of whether they are supported by State
funding. However, the forest conservation requirements of NR §5-
103 apply to highway projects in those counties.

                                    J. Joseph Curran, Jr.
                                    Attorney General

                                    William R. Varga
                                    Assistant Attorney General

Robert N. McDonald
Chief Counsel
Opinions and Advice

[1] You indicate that your inquiry is prompted by the possible
application of the Act to a new Garrett County Heath Department facility
that is currently under construction.

[2] Under that statute, if construction activity required the clearing of
trees on an area equal to one acre or more, the entity responsible for the
construction was to locate an equivalent area of publicly-owned land that
the Department of Natural Resources ("DNR") would reforest at a cost to
the entity of not more than $500 per acre. If available land could not be
located in accordance with the statute, the entity was to contribute $500
per acre to the reforestation fund maintained by DNR. See NR §5-103
(1989 Replacement Volume).

[3] Instead of requiring payments of up to $500 per acre, the 1991
statute now set the rate at $.10 per square foot - i.e., $4,356 per acre.
Chapter 255, §2, Laws of Maryland 1991. This new rate was the same as
required by the Forest Conservation Act. See NR §5-1610.

[4] The Act defines "forest" generally as "a biological community
dominated by trees and other woody plants covering a land area of 10,000
square feet or greater." NR §5-1601(k)(1). A similar definition of
"forest" appears in NR §5-103(a)(4), except that the latter provision
requires a minimum area of one acre.

[5] "Afforestation" is defined as "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).

[6] "Reforestation" is defined, in part, as "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." The term includes "landscaping of areas under
an approved landscaping plan that establishes a forest that is at least 35
feet wide and covering 2,500 square feet of area." NR §5-1601(ff).

[7] Afforestation and reforestation requirements are based on the
amount of land area, land use category, existing forest cover, and
conservation efforts. Afforestation ensures the establishment of a
minimum percentage of forest cover where a certain threshold did not
previously exist. See NR §5-1606(a). Reforestation is required if the area
of forest cover retained is less than a break even point calculated under the
Act. Clearing of existing forest cover above the appropriate conservation
threshold requires reforestation at a rate of 1/4 acre for each acre removed,
subject to a credit for each acre of forest retained. Clearing of existing
forest cover below that threshold requires reforestation at a rate of two
acres for each acre removed. See NR §5-1606(b)-(e).

[8] During the decade following its enactment, the Legislature
modified the Act in several respects, none of which bear on the exemption
for counties that meet the forested acreage threshold. See Chapter 489,
Laws of Maryland 1993 (granting local governments increased flexibility
in development of local programs, increased enforcement authority, and
the ability to recover certain costs; establishing the Advisory Group on
Forest Conservation); Chapter 556, Laws of Maryland 1994 (providing
that local forest conservation programs could provide waivers in
connection with certain previously paved surfaces); Chapter 630, Laws of
Maryland 1995 (providing an exemption if trees must be cut to comply
with certain Federal Aviation Administration requirements); and Chapter
559, Laws of Maryland 1997 (authorizing forest mitigation banking;
altering the preferred sequence for afforestation and reforestation;
modifying application of the Act to certain utility infrastructure;
authorizing DNR to recover certain costs when it administers a State forest
conservation program in a jurisdiction that does not have an approved
local program in effect).

[9] We understand that there is some dispute as to whether this
position has been consistently held by the agency or is of recent vintage.
A longstanding agency interpretation reflected in regulations adopted
close in time to the enactment of a statute is ordinarily entitled to "great
deference." See Baltimore Gas & Elec. Co. v. Public Serv. Comm'n, 305
Md. 145, 161, 501 A.2d 1307 (1986). However, in light of our conclusion
in Part III of this opinion that the legislative intent is clear and that the
regulations are, at most, ambiguous, we need not resolve the duration of
the agency's policy.

[10] Among other things, those amendments modified the existing
forest conservation law (NR §5-103) to increase the maximum payment
for reforestation to the same level as set forth in the proposed Forest
Conservation Act.

[11] This reading would be at odds with the design of the Act, under
which local governments adopt their own forest conservation programs
and the State program serves only as a fall back in the event that a local
government defaults on its obligation. See 77 Opinions of the Attorney
General 127 (1992).

[12] This conclusion does not detract from the broad authority
otherwise granted to DNR to implement the Forest Conservation Act. See
letter of advice from Assistant Attorney General Robert A. Zarnoch to
Shauna G. Mitchell, Department of Legislative Reference, dated February
28, 1996 (concluding that DNR could adopt regulation requiring a
"declaration of intent" with respect to certain exemptions).

[13] A separate provision applies the State program to local
government projects in those counties subject to the Act, but that have
failed to adopt a local program if State funds are not involved. See
COMAR 08.19.04.01A(2).

[14] We do not address whether, under appropriate circumstances,
State funding might be conditioned on conservation efforts such as
reforestation. This would depend upon whether the Legislature itself
imposed such conditions or authorized the grantor agency to impose them.