MACo Defends Local Flexibility Under State Forest Conservation Act

MACo Legal and Policy Counsel Les Knapp testified in support of legislation (SB 29) clarifying that local governments may adopt local forest conservation program provisions that are more stringent than those found in Maryland’s Forest Conservation Act (FCA) on January 24 before the Senate Education, Health, and Environmental Affairs Committee. The bill was sponsored by Senator Paul Pinsky.

Knapp argued that a plain reading of the FCA statute, an opinion from the Maryland Attorney General, and a subsequent letter of advice from the Attorney General’s Office made it clear that local governments were able to adopt more stringent requirements than those of the FCA. From MACo’s testimony:

The FCA statute currently reads: “By April 30, 1992, all units of government with planning and zoning authority shall submit a proposed forest conservation program, which meets or is more stringent than the requirements and standards of this subtitle, to the Department for its review and approval.” [§ 5-1603(a)(2) of the Natural Resources Article]  However, despite what MACo believes to be the obvious and clear meaning of this language, both counties and municipalities have faced challenges to their authority to actually implement a local program with stricter requirements. 

The Attorney General upheld the ability of a local government to adopt a local program that is more stringent that the FCA, including conservation thresholds and reforestation requirements, in a 2015 opinion. [100 Op. Att’y 120 (2015)] The opinion was reiterated in a recent letter of advice that upheld the ability of local governments to require greater retention of priority forests (subject to constitutional takings limitations) than the FCA. [Letter of Advice to Maryland Senator Paul Pinsky (February 29, 2016)]

The Chesapeake Bay Foundation and the City of Annapolis also testified in support of the bill. The Committee gave a favorable with amendments report on SB 29 on January 27.

Useful Links

SB 29 of 2017

MACo Testimony on SB 29

Senator Pinsky Webpage