Final Fate of Controversial FCA Legislation Up to the House

The House Environment and Transportation Committee is considering whether to take action on legislation pertaining to the Maryland Forest Conservation Act (FCA). HB 766 (sponsored by Delegate Anne Healey) and SB 610 (sponsored by Senator Ron Young) are a legislative priorities of both the Chesapeake Bay Foundation and Maryland League of Conservation Voters.

As originally introduced, the legislation would have created a new definition under the FCA of “priority retention area” that would have included contiguous growth forests and other forested areas. These retention areas would be prohibited from being disturbed unless an applicant has provided a set of written justifications that is affirmatively approved by the State (if the project is occurring on State-owned lands) or a local authority (if the project is within a local jurisdiction). The justifications must include: (1) an explanation of the reasons that the development cannot be altered to preserve the priority retention area; (2) a description of the alternatives that were considered, including applications for local variances that would facilitate forest conservation but not affect public safety, and that no other alternatives exist; and (3) a description of the forest conservation best practices or techniques that were considered and rejected and the reasons for any rejections.

A State or local authority may not approve a written justification based: (1) solely on cost; (2) on a preference to maintain a preferred site design; (3) a desire to obtain maximum zoning density or intensity; or (4) a desire to conduct mass grading or clearing of the development site. If the justifications were approved, the project developer must mitigate by replanting trees at a 1:1 ratio. The bill also contained language regarding when a forest conservation plan must be reviewed, when the Department of Natural Resources must update its Forest Conservation Act Technical Manual, and how a local government may use fee-in-lieu monies.

MACo supported the legislation with amendments, noting that while the technical manual update, fee-in-lieu provisions, and forest conservation plan reviewing timing were reasonable changes, there were significant issues with the priority retention definition, written justifications, and 1:1 replanting ratio proposed by the bill. MACo expressed concern that the bill would disrupt long-term planned development with priority funding areas and locally designated growth areas and greatly increase both the cost and difficulty of completing Smart Growth-friendly projects.

MACo also questioned the conflicting forest coverage and loss data that were being raised by the bill’s proponents and opponents and argued that establishing a data baseline was crucial before making broad changes to the FCA. The Maryland Municipal League also supported the bill with similar amendments. Opponents to the bill included NAIOP-MD (representing commercial builders) and the Maryland Building Industry Association.

While the House did not take any action on HB 766 after its February 21st bill hearing, the Senate passed a greatly amended version of SB 610 that struck the entire bill and replaced it with a “Task Force on the Forest Conservation Act Offset Policy.” MACo opposed the Task Force version of SB 610, noting that the Task Force membership was unbalanced, that its charge appeared to generate pre-determined outcomes, and that the House had already considered and rejected a very similar Task Force last year (see SB 365 of 2017).

Based on its actions last year, MACo does not believe the House will support the Task Force language found in SB 610. However, the House is considering whether to create a technical data study of both forest and tree canopy coverage in Maryland and programmatic review of state and local FCA programs. Consistent with MACo’prior statements, MACo could support such a study as long as the study considers all of the state’s tree replanting and forest programs and does not narrowly focus on outcomes solely under the FCA.

Useful Links

HB 766 of 2018

MACo Testimony on HB 766

SB 610 of 2018

MACo Testimony on SB 610

SB 365 of 2017