Legislators Consider Bill to Overturn AG Opinion on Forest Banking


With no eligible forest mitigation banks remaining in Montgomery County, the Maryland Park and Planning Commission is leading a legislative effort in Annapolis to reverse an Attorney General’s opinion that state law does not allow forest mitigation banks to be created from existing forest.

In October 2020, Maryland Attorney General Brian Frosh issued an opinion that concluded, in part, that acquisition of credits in a “forest retention bank” that preserves existing forest does not qualify as mitigation under the Forest Conservation Act. According to the opinion, to qualify for mitigation, a forest bank must have been intentionally planted expressly for the purpose of providing credits as opposed to preserving existing forest.

The opinion acknowledges that state law permits development and public works projects in designated growth areas, municipalities and other approved locations to mitigate forest impacts by acquiring an off-site protective easement on existing forest. Such an arrangement must provide the credit for mitigation at a ratio of half an acre of credit for each acre of forest easement.

For growth management reasons, the practice of mitigation via protection of existing forest offsite has had clear policy support from the General Assembly and Department of Natural Resources (DNR) going back to when the Forest Conservation Act was first passed. Nevertheless, the somewhat narrow legal inconsistency between mitigation via easement and mitigation via purchase of credits in a forest mitigation bank halted approval of projects using forest retention banks to meet mitigation requirements.

With no qualifying forest banks in Montgomery County and few others available anywhere in the state, the compliance options available for private development and public works projects were narrow and uncertain. A number of counties, industry groups and DNR are supporting passage of House Bill 991, which would reestablish forest retention banks as a clear mitigation option.

Environmental groups led by the Chesapeake Bay Foundation and the League of Conservation voters argue that trees cleared during development activities should only be replaced with planted forest. The Maryland Forest Service, DNR and forest consultants point to the environmental benefits of forest retention banks that permanently protect old growth forests at higher ratios than planted mitigation.

The House Environment and Transportation Committee has completed its public hearing on the bill and sent it to subcommittee where amendments are being considered.

The Maryland General Assembly is in session until April 12th.

Copyright 2021, NAIOP Maryland. Reprinted with permission from NAIOP-MD 360, www.naiopmd.org

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