Can a Maryland city or county require stricter tree-protection rules for new development than the state's Forest Conservation Act?

Plain-English summary

The chair of the House Environment and Transportation Committee asked the Attorney General whether local governments could adopt forest conservation ordinances stricter than the state's Forest Conservation Act, prompted by the City of Annapolis's efforts to draft a program with a "no net loss" of forest standard. The Department of Natural Resources had told at least one local advocacy group that while local jurisdictions could exceed some parts of the Act, they could not adopt reforestation ratios or conservation thresholds different from the ones the statute itself set out.

The opinion concluded that the Department's reading was too narrow. Reading the Act's text and legislative history together, the opinion found that local jurisdictions could adopt forest conservation programs, including the specific reforestation ratios and conservation thresholds in NR § 5-1606, that were more protective than the state minimums, and could adopt a "no net loss" of forest standard for their own programs. A local government did not have to justify choosing greater protection, though the Department could still ask a locality to explain how a particular ordinance's provisions related to the Act's overall requirements when the comparison was not obvious on its face.

Currency note

This opinion was issued in 2015. 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, ratio, or threshold mentioned here.

Common questions

Did a 2015 Maryland opinion say cities and counties could require more tree planting or preservation than the state Forest Conservation Act demanded?
Yes. The opinion concluded that local jurisdictions could adopt local forest conservation programs, including reforestation ratios and conservation thresholds, that were more protective of forest cover than the minimums set out in the state Forest Conservation Act.

Did the opinion say a local government had to explain why it wanted stricter tree-protection rules than the state?
Not automatically. The opinion concluded that a local jurisdiction did not have to justify its choice to adopt a program more stringent than the Act, though the Department of Natural Resources could ask the jurisdiction to explain how its program related to the Act's requirements when that was not clear from the ordinance's terms.

Did the opinion say Maryland had a statewide policy against any loss of forest cover?
The opinion noted that the General Assembly had, through the 2013 Forest Preservation Act, adopted a state policy encouraging "no net loss of forest," but the opinion did not treat this as requiring any particular local jurisdiction to adopt a no-net-loss standard for its own program; it concluded only that a locality was free to do so if it chose.

Background and statutory framework

At the time of this opinion, Maryland's Forest Conservation Act required local jurisdictions with planning and zoning authority to adopt a local conservation program "consistent with the intent, requirements, and standards of" the Act, per NR § 5-1603(a), and to submit that program to the Department of Natural Resources for approval. The Act set minimum afforestation and reforestation requirements tied to land use categories and to "conservation thresholds" defined in NR § 5-1606(b), the percentage of a tract's development at which the required reforestation ratio increased. The Department had told at least one jurisdiction that while it could be stricter on other program elements, it could not deviate from the conservation thresholds and reforestation ratios written into § 5-1606 itself.

The opinion read the "more stringent than" language of § 5-1603 to cover the entire Act, including the § 5-1606 thresholds, reasoning that nothing in the statute's text or legislative history singled out the thresholds as a ceiling rather than a floor. The opinion also pointed to the state's broader land use framework, which let local governments impose more protective planning and zoning standards generally, and to the 2013 Forest Preservation Act's statewide "no net loss of forest" policy, as further support that a locality could adopt an even stricter no-net-loss standard of its own.

Citations and references

Statutes:
- NR § 5-1603(a)(2), requiring local forest conservation programs to meet or exceed the Act's requirements and standards
- NR § 5-1606(b), defining the "conservation threshold" used to calculate reforestation ratios
- NR § 5-1607(a), leaving the sequence for afforestation and reforestation to local program design
- NR § 5-102(b)(1), the 2013 Forest Preservation Act's statewide policy of achieving "no net loss of forest"
- LU § 1-202(a), providing that a more restrictive local land use standard controls over a conflicting state standard

Cases:
- Stickley v. State Farm Fire & Cas. Co., 431 Md. 347, 358 (2013), on the cardinal rule of statutory construction to ascertain legislative intent
- Smack v. Dep't of Health and Mental Hygiene, 378 Md. 298, 305 (2003), on not adding or removing words from an unambiguous statute
- Marriott Employees Fed. Credit Union v. Motor Vehicle Admin., 346 Md. 437, 446 (1997), on the limits of deference to an agency's interpretation that conflicts with unambiguous statutory language
- Anderson v. Council of Unit Owners of Gables on Tuckerman Condo., 404 Md. 560, 571 (2008), on avoiding statutory interpretations that render words surplusage
- Montgomery County v. Fraternal Order of Police, Montgomery County Lodge 35, Inc., 427 Md. 561, 572 (2012), on giving effect to clear and unambiguous statutory language

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/2015/100OAG120.pdf

Original opinion text

120 [100 Op. Att'y

                NATURAL RESOURCES

FOREST CONSERVATION ACT – WHETHER LOCAL JURIS-
DICTIONS MAY ENACT PROGRAMS WITH CONSERVATION
THRESHOLDS AND REFORESTATION RATIOS THAT ARE
MORE STRINGENT THAN STATE LAW.
October 21, 2015

The Honorable Kumar P. Barve
Chair of the House Environment and
Transportation Committee
The House of Delegates of Maryland
You have asked for our opinion about the degree to which
local jurisdictions may enact forest conservation programs that are
more stringent than the Maryland Forest Conservation Act ("FCA"
or "Act"), Md. Code Ann., Nat. Res. ("NR") §§ 5-1601 through 5-
1613. Specifically, you ask two questions:
May a local jurisdiction adopt an
ordinance under the state Forest
Conservation Act that requires no net loss
of forest from development and higher
levels of reforestation and afforestation
than under the thresholds specified in NR
§ 5-1606 or that exceed other requirements
of the Forest Conservation Act or the
Department of Natural Resources' model
ordinance?
May a local jurisdiction adopt other more
stringent provisions in an ordinance under
the state Forest Conservation Act without
the Department of Natural Resources
requiring an explanation or justification as
to why each of that ordinance's provisions
are more stringent than the Act or model
ordinance, including such items as greater
protection of forested stream buffers, steep
slopes, highly erodible soils, and larger
trees?
It is our understanding that the City of Annapolis is contemplating
the enactment of a forest conservation program with standards that
are more stringent than those in the Act and that its efforts are being
complicated by uncertainty on these questions.

  In our opinion, local jurisdictions may enact forest

conservation programs with requirements and standards that are
more stringent than those set forth in the Forest Conservation Act.
Accordingly, local jurisdictions may require development projects
to meet a "no net loss" requirement and levels of reforestation and
afforestation that are more protective than the standards and
requirements set forth in the state law. If a local government elects
to do so, it is not required to justify the greater level of protection,
but the Department of Natural Resources ("DNR" or "the
Department") may require the local jurisdiction to explain how its
program is consistent with the intent, requirements, and standards
of the Act.

                                I
                         Background

A. The Forest Conservation Act Statutory Scheme
The Forest Conservation Act provides minimum
requirements for forest conservation that apply when someone
develops land in Maryland. See generally 77 Opinions of the
Attorney General 127 (1992) (describing statute); 86 Opinions of
the Attorney General 72 (2001) (same). Subject to several
enumerated exceptions, the Act applies to any project involving the
development of 40,000 square feet or more that requires a
subdivision plan, grading permit, or sediment control permit. NR
§ 5-1602(a). The Act delegates primary responsibility for
implementation to the localities; each unit of local government with
planning and zoning authority is charged with applying the Act to
projects requiring local development approval.1 To carry out that
responsibility, local governments must "develop a local
conservation program, consistent with the intent, requirements, and
standards of" the Act and submit that program to DNR for its
review and approval. NR § 5-1603(a), (b); see 77 Opinions of the
Attorney General 127 (concluding that adoption of a forest
conservation program is mandatory for local jurisdictions). Local

1
   The Act does not apply in a county that "has and maintains 200,000

acres or more of its land area in forest cover." NR § 5-1602(b)(10).
When the statute was enacted, only Allegany and Garrett counties met
the terms of the exemption. 86 Opinions of the Attorney General at 76.
It is our understanding that those two counties remain exempt today.

programs must "meet[]" or be "more stringent than the
requirements and standards of [the Act]." NR § 5-1603(a)(2), (c).2
The Act establishes a basic framework for determining how
many trees must be retained, and how many may be removed, in
connection with a land-development project. First, the law requires
the applicant to submit a forest stand delineation. The delineation
is prepared by a qualified professional and includes a map
indicating the species, location, and size of the trees on the property
and the dominant and codominant forest types. NR §§ 5-1601(p),
5-1604. Next, upon notice from the approving authority that the
forest stand delineation is complete and correct, the applicant must
submit a forest conservation plan. NR § 5-1605(a). This plan,
again prepared by a qualified professional, must include a visual
depiction of the forest conservation to be provided on the site,
including areas where existing forest will be retained; areas where
afforestation (planting in areas where there are presently no trees)
is planned; an afforestation and reforestation plan with a timetable
and description of the necessary site preparation; and a binding 2-
year management plan detailing how afforested and reforested
areas will be maintained. NR § 5-1605(b), (c). The applicant must
obtain approval of the plan from the relevant agency before a
subdivision plan or grading or sediment control permit may be
approved or issued. NR § 5-1608.
In addition to its planning requirements, the Act also includes
substantive afforestation provisions that require the landowner to
plant trees in areas where none existed. See NR § 5-1606(a). The
afforestation requirements vary with the land use category of the
property. For example, lands zoned agricultural must be planted
with trees sufficient to achieve 20% tree cover; lands zoned
commercial must achieve 15% cover. NR § 5-1606(a)(1), (2). The
Act also establishes reforestation requirements for all land use
categories based on certain "conservation thresholds." NR § 5-
1606(b). The conservation thresholds are defined as "the
percentage of the net tract area at which the reforestation
requirement increases from a ratio of ¼ acre planted for each acre
removed, to a ratio of 2 acres planted for each acre removed." Id.
As with afforestation, the reforestation requirements vary by land
use category: for agricultural lands, the more aggressive
requirements kick in once 50% of the tract is developed, whereas

2
The Department is required to implement a State forest
conservation program for State projects and in covered jurisdictions
where there is no local plan in effect. See NR § 5-1603(d); COMAR
08.19.04.01A.

for commercial areas, those requirements kick in at 15%. NR § 5-
1606(c). Each acre of forest retained above the threshold is
credited against the total number of acres to be reforested. NR § 5-
1606(d)(2). All afforestation and reforestation must be completed
within one year or two growing seasons after completion of the
development project. NR § 5-1606(a)(4), (f)(1).
Although the Act includes these basic substantive
requirements, it generally leaves to the local jurisdictions (or the
Department, with respect to developments that fall within the
State's limited jurisdiction) the task of spelling out the details of
how those requirements must be satisfied under their respective
plans. For example, the Act sets forth a preferred sequence for
afforestation and reforestation that looks first to on-site plantings,
then plantings at other approved sites, and, when all other options
are exhausted, payment to the State or local Forest Conservation
Fund. NR §§ 5-1607(a), 5-1606(f)(2). The determination of how
to apply that sequence, however, is made by the local authority.
NR § 5-1607(a). Similarly, the details of how to carry out the
Act's afforestation and reforestation requirements are left to the
local authority to determine using certain methods enumerated
in the statute. NR § 5-1607(b). The Act also leaves it to
the local authority to develop provisions for preserving certain
areas that are considered priorities for retention and
protection. NR § 5-1607(e)(1).

B. Implementation of the Forest Conservation Act's
Requirements
The Forest Conservation Act was enacted in 1991 and became
effective on July 1, 1991. See 1991 Md. Laws, ch. 255. The
Department was directed to adopt regulations, including a technical
guidance manual and a model ordinance, by December 31, 1991.
NR § 5-1609. Thereafter, all units of government with planning
and zoning approval had to submit a proposed forest conservation
program to the Department by April 30, 1992. NR § 5-1603(a)(2).
Following DNR approval of the proposed program, each such unit
was directed to formally adopt the program and submit its adopted
program to the Department by December 31, 1992. NR § 5-
1603(b). The Department has continuing review authority over
local programs and is directed to conduct biennial reviews of each
authority's program. NR § 5-1603(e).
The initial deadlines for implementing the Act's requirements
were tight. In late 1991, with input from stakeholders, including

local governments and the building industry, the Department
promulgated regulations and a model ordinance, which became
effective on January 20, 1992. 19:1 Md. Reg. 24 (1992); see
COMAR 08.19.01-.06. Given the time constraints for adoption of
local ordinances, most counties and municipalities initially adopted
the model ordinance with minimal changes.
Since its enactment, the Act has been amended several times,
and the Department has updated its regulations and model
ordinance to reflect those statutory changes. Local governments,
in turn, have revisited their local ordinances and, in the process of
amending their ordinances, some have sought to deviate from the
model ordinance and statutory requirements in an effort to protect
more forested land. In reviewing these proposed differences, DNR
has acknowledged that a local government may develop a program
that is more stringent than the requirements and standards of the
statute. For example, the Department has apparently approved
broader criteria for plants and areas considered priority for
retention, more explicit criteria for removal of priority forest, and
more restrictive standards for the location of afforestation and
reforestation.
It is our understanding, however, that the Department has
informed local jurisdictions on at least two occasions that they may
not establish conservation thresholds or reforestation ratios that
vary from those set forth in the Act. The Department has also
recently made its interpretation known to an environmental
advocacy group that had inquired about the status of the City of
Annapolis's local program. See Letter from Mark J. Belton, DNR
Secretary, to Alison Prost, Chesapeake Bay Foundation (July 2,
2015) (stating that "the Forest Conservation Act does allow or
enable local jurisdictions to craft forest conservation ordinances
that include components that are more stringent than the statute,"
but that such components "may not alter the [conservation]
thresholds and [reforestation] ratios established by [§] 5-1606").

                           II
                         Analysis

A. A Local Program May Impose a No Net Loss Policy and
Other Forest Conservation Measures that Are More
Stringent than the Act's Requirements.
The extent to which local jurisdictions may enact forest
conservation programs that are more stringent than State law is a
matter of statutory construction. When construing statutes, we

follow familiar rules. As the Court of Appeals has explained, the
"cardinal rule of statutory interpretation is to ascertain and
effectuate the intent of the Legislature." Stickley v. State Farm
Fire & Cas. Co., 431 Md. 347, 358 (2013) (internal quotation
marks omitted). Statutory construction "begins with the plain
language of the statute," but considers that language within the
context of the larger statutory scheme, for even "the plainest
language is controlled by the context in which it appears."
Id. at 358-59 (internal quotation marks omitted). Furthermore,
"[w]ords may not be added to, or removed from, an unambiguous
statute in order to give it a meaning not reflected by the words the
Legislature chose to use . . . ." Smack v. Dep't of Health and
Mental Hygiene, 378 Md. 298, 305 (2003).
The interpretation of the statute by the agency charged with
applying it is entitled to "a certain amount of deference," Motor
Vehicle Admin. v. Salop, 439 Md. 410, 421 (2014) (internal
quotation marks omitted), with the weight to be accorded that
interpretation dependent upon a number of considerations,
including the extent to which the interpretation is contemporaneous
and has been applied "consistently and for a long period of time,"
Baltimore Gas & Elec. Co. v. Pub. Serv. Comm'n of Md., 305 Md.
145, 161 (1986). Also, the "nature of the process through which
the agency arrived at its interpretation is a relevant consideration";
courts will give "little weight" to an agency interpretation that "is
the product of neither contested adversarial proceedings nor formal
rule promulgation." Id. at 161-62. Finally, "[a]n administrative
agency's construction of the statute is not entitled to deference . . .
when it conflicts with the unambiguous statutory language."
Marriott Employees Fed. Credit Union v. Motor Vehicle Admin.,
346 Md. 437, 446 (1997). With these and other canons of statutory
interpretation in mind, we now turn to the statute at hand.

      1.     The Forest Conservation Act Allows Local
        Jurisdictions to Adopt Local Programs with
        Requirements that are More Stringent than State
        Law.
  The plain language of the Forest Conservation Act seems

clear: Each local government unit with planning and zoning
authority must develop and adopt a local forest conservation
program that "meets or is more stringent than the requirements and
standards of this subtitle." NR § 5-1603(a)(2) (emphasis added);
see also NR § 5-1603(c) (same). In authorizing greater stringency,
§ 5-1603 does not specify any particular "requirement" or

"standard" or any particular part of a local program; it simply refers
to the "requirements and standards" of the Act. In the absence of a
definition of "requirements and standards" that limits those terms
to particular aspects of the statute, this provision would seem to
cover all of the statutory provisions that govern the preservation
and augmentation of forest cover. Under the plain language, then,
local programs may include requirements and standards that are
more stringent than those set forth in the Act.
As it explains in its July 2015 letter, the Department has
interpreted the statute somewhat differently. It reads the "more
stringent than" language of § 5-1603 as inapplicable to the
"conservation thresholds" set forth in § 5-1606. The Department's
reading rests primarily on the fact that § 5-1606, unlike other
provisions of the Act, does not explicitly leave it to the State or
local authority to establish the requirements that govern the forest
conservation process. For instance, § 5-1607(b) provides that the
standards for meeting afforestation or reforestation requirements
"shall be established by the State or local program" using certain
methods set out in the statute. Section 5-1607(a) provides the same
for the preferred "sequence for afforestation and reforestation."
Section 5-1606, by contrast, simply states what the amount of
forest cover "shall be," declares that "[t]here is a forest
conservation threshold established for all land use categories," and
then defines what the forest conservation threshold "means." NR
§ 5-1606(a)(1), (b).
For several reasons, we conclude that the Department's
interpretation is inconsistent with the plain language of § 5-1603,
and that the conservation thresholds qualify as "requirements and
standards" with respect to which a local jurisdiction may be stricter
than the Act. First of all, in terms of nomenclature, we see no
indication that the General Assembly intended to use the word
"threshold" in § 5-1606 as a way of distinguishing it from the Act's
other "requirements" and "standards." The conservation
thresholds are themselves only a means of calculating the
reforestation requirement for a particular project; they have no
separate function, and thus no meaning, outside of that context. See
NR § 5-1606(b) ("The forest conservation threshold means the
percentage of the net tract area at which the reforestation
requirement changes from a ratio of ¼ acre planted for every 1 acre
removed to a ratio of 2 acres planted for every 1 acre removed."
(emphasis added)). The conservation thresholds thus are merely
part of a requirement that local jurisdictions may choose to make
more stringent. See NR § 5-1610(f)(2), (i)(2) (referring to
"afforestation or reforestation requirements"). Although the

thresholds themselves do not require landowners to do anything,
they provide the standard for applying the statute's reforestation
requirement in any given situation. Either way, the thresholds
operate as "requirements" or "standards" that the State and local
programs must incorporate. In sum, we see no reason, based on the
terms used in the Act, to consider the conservation thresholds as
anything other than part of the Act's "requirements" or
"standards."
Furthermore, the General Assembly's use of the terms
"requirements" and "standards" throughout the Act indicates that
the two terms were meant to cover all aspects of the forest
conservation program. For example, the statute provides that "[a]
unit of local government having planning and zoning authority
shall develop a local forest conservation program, consistent with
the intent, requirements, and standards of this subtitle." NR § 5-
1603(a)(1). If the conservation "thresholds" did not qualify as
"standards" or "requirements," then local programs would not have
to be consistent with those thresholds. That result would be
inconsistent with legislative intent and the agency's practice.
Similarly, the General Assembly directed the Department to
prepare guidance manuals to assist local programs in carrying out
the Act's requirements, NR § 5-1609(a)(1), and specified that "[a]ll
provisions of the guidance manual that are not specifically noted as
standards or minimum requirements shall be deemed
recommendations by the Department for the development of the
local program," NR § 5-1609(a)(2). The statute thus contemplates
that the Department's guidance would cover two different things:
"recommendations," which local programs may choose to
incorporate into their programs, and "standards" or "minimum
requirements," which the local programs must adopt. The statute
does not contemplate a third category of conservation "thresholds"
that, unlike "standards" or "requirements," a local program must
adopt and yet may not exceed.
We recognize, as the Department has pointed out, that the
statute authoritatively states that "'[t]here is a forest conservation
threshold established for all land use categories,' NR § 5-1606(b),
and that a forest conservation plan 'shall provide for reforestation
. . . according to the formula set forth in subsection (b) of this
section,' NR 5-1606(c)." Belton Letter at 1 (emphasis in original).
The language the Department emphasizes is clearly the language
of requirement and, as applied to the Department, it operates as
such. When called upon to implement a forest conservation
program with respect to State projects and in local jurisdictions that

do not have an approved program in place, the Department may not
stray from the conservation thresholds established in the Act. But
local jurisdictions are specifically authorized to enact their own
programs with provisions that are more stringent than the
"requirements" of the Act, and nothing in § 5-1606 alters or calls
into question that specific grant of authority.
Moving beyond terminology to substance, reading the
statutory phrase "requirements and standards" to exclude the
conservation thresholds would dramatically reduce the efficacy of
the local programs' authority. As its name suggests, the purpose of
the Forest Conservation Act is to conserve Maryland's remaining
forests, a goal that the Act accomplishes principally through its
afforestation and reforestation requirements. Those requirements
are the heart of the statute's regulatory charge. If local jurisdictions
are unable to enact programs that are more stringent with respect
to those requirements, then the scope of § 5-1603 is diminished
substantially.
Moreover, the types of regulatory decisions with respect to
which the Department has traditionally allowed local jurisdictions
to be more stringent than State law—things like more restrictive
standards for acceptable planting stock or location of afforestation
and reforestation—are already expressly left to the local
jurisdictions to determine. See, e.g., NR § 5-1607(a)(4) (allowing
local jurisdictions to permit an alternative sequence for
afforestation or reforestation "if necessary to achieve the objectives
of a local jurisdiction's land use plans or policies or to take
advantage of opportunities to consolidate forest conservation
efforts"); § 5-1607(b) ("Standards for meeting afforestation or
reforestation requirements shall be established by the State or local
program . . . ."). The Department's interpretation thus tends to read
§ 5-1603's grant of power to localities to enact more stringent
requirements out of existence, an interpretive result the Court of
Appeals cautions against. See Anderson v. Council of Unit Owners
of Gables on Tuckerman Condo., 404 Md. 560, 571 (2008) (noting
that an interpretation must "ensure that no word, clause, sentence
or phrase is rendered surplusage, superfluous, meaningless or
nugatory" (internal quotation marks omitted)).
We also cannot square the Department's interpretation with
our prior opinions on the Forest Conservation Act. Those opinions
reflect that the essential purpose of the Act is to prompt local
governments to enact local programs that protect and grow the
State's forest cover through conservation, afforestation, and
reforestation. As Attorney General Curran previously opined,
"[t]he Forest Conservation Act reflects a legislative judgment that

the forest conservation program is best implemented and
administered at the local level." 77 Opinions of the Attorney
General at 129. By contrast, the State's program is a "limited,
interstitial one," designed only as a "back-up" should a local
jurisdiction fail to adopt an approvable program. Id. at 131-32.
Excluding the conservation "thresholds" from the scope of § 5-
1603(a) would lock local programs into the State requirements in a
way that seems out-of-step with that legislative design.
Limiting the local jurisdictions' ability to enact more stringent
forest conservation measures also seems inconsistent with the
statutory provisions that grant those jurisdictions planning and
zoning authority in the first place. Those provisions require charter
counties, and non-charter counties and municipalities, to include
within their comprehensive plans the "visions" set forth in § 1-201
of the Land Use Article and certain planning "elements," including
"a sensitive areas element." Md. Code Ann., Land Use ("LU")
§§ 1-406, 3-102. The "visions" set forth in § 1-201 include one for
"resource conservation," so that "waterways, forests, agricultural
areas, open space, natural systems, and scenic areas are
conserved." LU § 1-201(10) (emphasis added). "Sensitive area
elements" must "include the goals, objectives, principles, policies,
and standards designed to protect sensitive areas from the adverse
effects of development," LU §§ 1-408(a), 3-104(a), and "sensitive
areas," in turn, are defined to include "agricultural or forest land
intended for resource protection or conservation," LU § 1-101(o)
(emphasis added). These provisions thus contemplate that local
jurisdictions might include forest conservation measures within
their comprehensive plans. And, when any local law or regulation
adopted under the planning and zoning division of the Land Use
Article conflicts with any other statute, local law, or other
regulation, the provision that "imposes a more restrictive standard"
controls. LU § 1-202(a), (b). The Land Use Article thus
specifically allows local jurisdictions, in the exercise of their
planning and zoning powers, to enact land use standards that are
more stringent than those provided in State law. We see no reason
to believe that the General Assembly, in requiring local
jurisdictions to adopt forest conservation measures, intended to
limit their traditional planning and zoning power with regard to
those natural resources.
Although we conclude that the language of the Forest
Conservation Act unambiguously allows local jurisdictions to
adopt forest conservation measures that are more stringent than
State law, we also consider the Act's legislative history because the

Department has suggested that it supports a contrary reading. The
Department focuses on the fact that legislative findings declaring a
"no net loss" policy were stripped from the bill, and that § 5-1606
was amended to change the afforestation requirement from "up to
a minimum of 20%" to simply "up to 20%," suggesting that the
afforestation requirements were not intended to serve as a floor
only. See 1991 Md. Laws, ch. 255 (reflecting changes to bill,
including § 5-1606(a), (b)).
Neither of these alterations in the bill's provisions bears on
whether local governments may enact more stringent programs on
their own. The deletion of the legislative findings discussing a "no
net loss" policy suggests that the Legislature may have backed
away from adopting a formal statewide policy, but it says nothing
about the scope of local authority. Nor does the deletion of the
phrase "a minimum of" from § 5-1606 address local authority.
That deletion was part of a larger revision of the section that
changed an across-the-board 20% afforestation requirement to the
current two-tiered requirement of 20% afforestation for certain
types of land, and 15% for others. See NR § 5-1606(a)(1), (2);
1991 Md. Laws, ch. 255 (reflecting changes to § 5-1606(a), (b)).
The deletion of the "a minimum of" language might simply have
reflected the fact that 20% was no longer the minimum
afforestation requirement.
We find more compelling the absence of any indication in the
legislative history that legislators or stakeholders believed that the
conservation thresholds were excluded from the scope of the "more
stringent" savings clause. To the contrary, what little there is on
that clause describes it broadly enough to include conservation
thresholds. See, e.g., 1991 Leg., Reg. Sess., Senate Economic and
Environmental Affairs Committee., S.B. 224, Floor Report at 1
("Local governments must develop a local forest conservation
program that meets or exceeds the State Program . . . ."); id., Bill
Analysis at 1 (stating that the bill would require local governments
to submit "a forest conservation program which is equivalent to, or
more stringent than, the provisions contained in the bill"); House
Environmental Matters Committee, S.B. 224, Bill Analysis at 1
("Localities must adopt forest conservation programs that meet or
exceed State standards, following guidelines and criteria
established in the bill."); see also DNR, S.B. 224 Bill Report at 2
(Jan. 29, 1991) (stating that local jurisdictions would have to
develop programs "with standards at least as stringent as those set
forth in the law"). In the months following enactment of the
legislation, the Chairman of the House Environmental Matters
Committee wrote to our Office objecting to the Department's

overzealous implementation of the Act in some respects, but had
this to say about § 5-1603: "By December 31, 1992, local
jurisdictions must submit adopted local programs at least as
stringent as the Act to the Department." Letter from Del. Ronald
A. Guns to Judson P. Garrett, Jr., Deputy Attorney General at 4
(Sept. 12, 1991) (emphasis added). Rather than exclude
conservation thresholds from the scope of the "more stringent"
clause, all of these descriptions read the clause broadly to allow
local jurisdictions to be more stringent with respect to any aspect
of the Act.3
In reaching this conclusion, we are mindful of the fact that the
Department, in two instances described to us, has informed local
jurisdictions that they could not adopt conservation thresholds
different from those set forth in the Act. The Department's actions
in those two instances, however, apparently did not amount to
program denials or any other type of formal agency action. Instead,
we are told, the agency expressed its view in informal comments
on local program submittals and without elaborating on the
interpretive grounds for its comment.4 And while Secretary
Belton's recent letter indicates that the Department's interpretation
is contemporaneous and long-held, ultimately that interpretation
must yield to the unambiguous language of the Act. Marriott
Employees, 346 Md. at 446 ("An administrative agency's
construction of the statute is not entitled to deference, however,
when it conflicts with the unambiguous statutory language."). As
we conclude above, the Act unambiguously allows local

3
   The fiscal and policy notes accompanying subsequent amendments

to the Act similarly give the savings provision a broad construction. See
2009 Reg. Sess., S.B. 666, Revised Fiscal and Policy Note at 4 ("Enacted
in 1991, the Forest Conservation Act provides a set of minimum
standards that developers must follow when designing a new project that
affects forest land. Local governments are responsible for making sure
these standards are met, but they may choose to implement even more
stringent criteria."); 2013 Reg. Sess., H.B. 706, Revised Fiscal and
Policy Note at 2 (same).
4
An agency interpretation that is adopted outside of a contested case
hearing or a formal rule promulgation is entitled to a somewhat lesser
degree of deference because it is untested by the administrative and
legislative review that those proceedings involve. See, e.g., Evans v.
State, 396 Md. 256, 348 (2006) (discussing the importance of AELR
Committee review for purposes of determining whether a proposed
regulation complies with the legislative intent of the statute under which
it is to be promulgated).

jurisdictions to enact forest conservation programs with
"requirements and standards" that are more stringent than those set
forth in the Act, and there is nothing in the Act or its legislative
history that excludes conservation thresholds and reforestation
ratios from that grant of authority.
In sum, we see nothing in the statute or legislative history
indicating that the General Assembly understood the conservation
thresholds to be something other than "standards or requirements"
or that localities were not permitted to adopt more stringent
thresholds. The words of § 5-1603, "construed according to their
common and everyday meaning, are clear and unambiguous and
express a plain meaning." Montgomery County v. Fraternal Order
of Police, Montgomery County Lodge 35, Inc., 427 Md. 561, 572
(2012) (internal quotation marks omitted). We thus give effect to
the statute as it is written and reiterate our conclusion from 2001:
"Local governments with planning and zoning authority are
required to develop local forest conservation programs that meet or
exceed standards"—all standards—"under the Act." 86 Opinions
of the Attorney General at 75.5

        2.   The Forest Conservation Act Allows, But Does Not
       Require, a Local Jurisdiction to Adopt a Local
       Program Reflecting a "No Net Loss" of Forest.
 As discussed above, the bill that became the Forest

Conservation Act originally included a legislative finding that
would have established the "no net loss" of forest as statewide
policy:
It is the intent of the General Assembly that
this Forest Conservation Act is to be
implemented and coordinated with other State
and local conservation, reforestation, and
afforestation programs, statutes, and
regulations as one part of a comprehensive
strategy to achieve no net loss of forest cover
in the State of Maryland.
1991 Md. Laws, ch. 255 (reflecting language deleted from § 5-
1602). The deletion of this (and every other) finding might weigh
against reading the statute to allow local jurisdictions to adopt a

5
Local programs may also be more stringent than the Department's
model ordinance, which is designed to mirror the requirements of the
statute. See NR § 5-1609(a)(1)(ii).

"no net loss" policy on its own, but not necessarily so. There is a
difference between declaring a statewide "no net loss" policy and
allowing a local jurisdiction to adopt such a policy to guide its own
land use and development processes. Rejecting the first does not
imply rejection of the second. We find it more significant that the
Legislature left in place the language authorizing a local
jurisdiction to enact local programs that are more stringent than the
State law. If the State law does not provide for no net loss, there is
nothing in the Act that prevents a local jurisdiction from doing so.
Furthermore, the deletion of the "no net loss" finding was
not the end of legislative action on the issue; the General Assembly
has since officially declared that State policy is to achieve no net
loss of forest. In 2009, the General Assembly directed the
Department to cooperate with forestry-related stakeholder groups
to "determine the meaning of no net loss of forest for the purposes
of any state policy" and "develop proposals for the creation of a
policy of no net loss of forest in the State." 2009 Md. Laws, ch.
298 (codified at NR § 5-104(a)). The Department's subsequent
report supported the DNR Sustainable Forestry Council's
recommendation that the State implement initiatives that ensure
that 40% of all land is covered by forest by 2020. See 2013 Reg.
Sess., H.B. 706, Revised Fiscal and Policy Note. Based on that
recommendation, the Legislature enacted the Forest Preservation
Act of 2013.
The Forest Preservation Act declares it to be State policy "to
encourage the retention and sustainable management of forest
lands by . . . [a]chieving no net loss of forest." NR § 5-102(b)(1);
see also NR § 5-101(i) (defining "no net loss of forest" to mean
"40% of all land in Maryland is covered by tree canopy"). The bill
also makes various changes aimed at preserving forest land in the
State. It focuses on protecting forests through planning,
encouraging private forest management through expanded tax
credits, increasing flexibility in reforestation efforts, increasing
forest fire responsibility, and improving compliance with the
earlier Forest Conservation Act.
The 2013 legislation does not speak to the stringency of the
requirements or standards that a local jurisdiction may include
within its forest conservation program. Nor does it compel or
recommend that a local jurisdiction seek to achieve "no net loss"
on a programmatic or project-by-project basis. But it removes any
possible implication that might have been created by the
Legislature's deletion of the "no net loss" finding in 1991. Given

that Maryland law now affirmatively "encourage[s]" a no net loss
of forest, NR § 5-102(b)(1), we conclude that a local jurisdiction
may enact a local forest conservation program that embodies a "no
net loss" policy.

B. A Local Jurisdiction Need Not Justify Its Decision to Enact
a Program that Is More Stringent than the Forest
Conservation Act, but the Department May Inquire into
Whether the Local Program Is Consistent with, and Meets
or is More Stringent than, the Requirements of the Act.
Your last question asks whether the Department may require
a jurisdiction to justify its decision to enact a local program that is
more stringent than the Forest Conservation Act or the DNR
regulations or model ordinance that implement it. Where the
requirement clearly meets and is simply more stringent than a
corresponding State requirement, the answer is no and the inquiry
ends there. A local jurisdiction need not justify its choice to adopt
a program that is more stringent than State law.
But it is not always this straightforward; a jurisdiction might
start with the model ordinance, but alter many of its provisions in
a way that makes the relative stringency of the local program
difficult to determine. For example, because a local program is
designed to be implemented as part of a broader development
review process, the local government may use terminology that is
different from that used in State law. Some changes in a proposed
ordinance might appear to be more restrictive, others less so. In
order to make a determination as to whether the ordinance is
"consistent with the intent, requirements, and standards" of the Act,
NR § 5-1603(a), the Department may properly ask the local
jurisdiction to explain how different aspects of its proposed
program compare to the State law.

                            III
                         Conclusion
  Local jurisdictions may enact forest conservation programs

that are more stringent than the Forest Conservation Act.
Accordingly, we conclude that a local jurisdiction, in the exercise
of its planning and zoning powers, may require that development
projects meet a "no net loss" standard of forest conservation and
provide levels of reforestation and afforestation that are more
protective of our State's forest cover than the standards and
requirements set forth in the state law. Should a local government
elect to do so, it is not required to justify the greater level of

protection, but the Department may require the local jurisdiction to
explain how its program is consistent with the intent, requirements,
and standards of the Act.

                           Brian E. Frosh
                           Attorney General of Maryland
                           Adam D. Snyder
                           Chief Counsel, Opinions & Advice