In this subtitle the following words have the meanings indicated. “Afforestation” means 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. “Agricultural activity” means farming activities including plowing, tillage, cropping, installation of best management practices, seeding, cultivating, and harvesting for production of food and fiber products (except commercial logging and timber harvesting operations), the grazing and raising of livestock, aquaculture, sod production, orchards, nursery, and other products cultivated as part of a recognized commercial enterprise. “Agricultural and resource areas” are undeveloped areas zoned for densities of less than or equal to 1 dwelling unit per 5 acres. “Champion Tree” means the largest tree of its species within the United States, the State, county, or municipality, as appropriate. “Commercial and industrial uses” includes manufacturing operations, office complexes, shopping centers, and other similar uses and their associated storage areas, yarding, and parking areas. “Commercial logging or timber harvesting operations” means the cutting and removing of tree stems from a site for commercial purposes, leaving the root mass intact. “Critical habitat area” means a critical habitat for endangered species and its surrounding protection area. A critical habitat area shall: Be likely to contribute to the long–term survival of the species; Be likely to be occupied by the species for the foreseeable future; and Constitute habitat of the species which is deemed critical under § 4–2A–06 or § 10–2A–06 of this article. “Critical habitat for endangered species” means a habitat occupied by an endangered species as determined or listed under § 4–2A–04 or § 10–2A–04 of this article. “Department” means the Department of Natural Resources. “Forest” means a biological community dominated by trees and other woody plants covering a land area of 10,000 square feet or greater. “Forest” includes: Areas that have at least 100 trees per acre with at least 50% of those trees having a 2 inch or greater diameter at 4.5 feet above the ground; and Forest areas that have been cut but not cleared. “Forest” does not include orchards. “Forest conservation” means the retention of existing forest or the creation of new forest at the levels prescribed by the State or local authority. “Forest conservation plan” means a plan approved pursuant to §§ 5–1605 and 5–1606 of this subtitle. “Forest cover” means the area of a site meeting the definition of forest. “Forest mitigation banking” means the intentional restoration, creation, or qualified conservation of forests undertaken expressly for the purpose of providing credits for afforestation or reforestation requirements with enhanced environmental benefits from future activities. “Forest stand delineation” means the methodology for evaluating the existing vegetation on a site proposed for development, taking into account the environmental elements that shape or influence the structure or makeup of a plant community. “Forested slopes” means an area meeting the definition of forest and growing on an area with a slope of 25 percent or more and covering an area of at least 10,000 square feet. “High density residential areas” means areas zoned for densities greater than 1 dwelling unit per acre, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service. “Institutional development area” includes schools, colleges and universities, military installations, transportation facilities, utility and sewer projects, government offices and facilities, golf courses, recreation areas, parks, and cemeteries. “Intermittent stream” means a stream in which surface water is absent during a portion of the year as shown on the most recent 7.5 minute topographic quadrangle published by the United States Geological Survey as confirmed by field verification. “Linear project” means a project whose configuration is elongated with nearly parallel sides and used to transport a utility product or public service not otherwise contained in an application for subdivision, such as electricity, gas, water, sewer, communications, trains, and vehicles. Linear projects may traverse fee simple properties through defined boundaries or through easement rights. “Local forest conservation program” means a program developed and implemented pursuant to § 5–1603 of this subtitle. “Medium density residential areas” means areas zoned for densities greater than 1 dwelling unit per 5 acres and less than or equal to 1 dwelling unit per acre, including both existing and planned development and their associated infrastructure, such as roads, utilities, and water and sewer service. “Mixed use development” means a single, relatively high density development project, usually commercial in nature, which includes 2 or more types of uses. “Natural regeneration” means the natural establishment of trees and other vegetation with at least 400 woody, free–to–grow seedlings per acre, which are capable of reaching a height of at least 20 feet at maturity. “Net tract area” means: Except in agriculture and resource areas or linear project areas, the total area of a site, including both forested and nonforested areas, to the nearest one–tenth acre reduced by that area where forest clearing is restricted by another local ordinance or program; In agriculture and resource areas, the portion of the total tract for which land use will be changed or will no longer be used for primarily agricultural activities reduced by that area where forest clearing is restricted by another local ordinance or program; and For a linear project: The area of a right–of–way width, new access roads, and storage; or The limits of disturbance as shown on an application for sediment and erosion control approval or in a capital improvements program project description. “Nontidal wetland” means an area that is inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and under normal conditions does support, a prevalence of vegetation typically adapted for life in saturated soil conditions, commonly known as hydrophytic vegetation. The determination of whether an area is considered a nontidal wetland shall be made in accordance with the publication known as the “Federal Manual for Identifying and Delineating Jurisdictional Wetlands”, published in 1989 and as may be amended and interpreted by the U.S. Environmental Protection Agency. “Nontidal wetland” does not include a tidal wetland regulated under Title 16 of the Environment Article. “One hundred year floodplain” means an area along or adjacent to a stream or body of water, except tidal waters, that is capable of storing or conveying floodwaters during a 100–year frequency storm event. A 100–year flood is a flood which has a 1% chance of being equaled or exceeded in any given year. Except for Class III waters (natural trout streams), a body of water with a watershed less than 400 acres is excluded. “Perennial stream” means a stream containing surface water throughout an average rainfall year, as shown on the most recent 7.5 minute topographic quadrangle published by the United States Geological Survey, as confirmed by field verification. “Person” includes the federal government, the State, any county, municipal corporation, or other political subdivision of the State, or any of their units, or an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or any of their affiliates, or any other entity. “Planned unit development” means a development comprised of a combination of land uses or varying intensities of the same land use in accordance with an integrated plan that provides flexibility in land use design approved by the local jurisdiction with at least 20% of the land permanently dedicated to open space. “Priority funding area” means an area designated as a priority funding area under § 5–7B–02 of the State Finance and Procurement Article. “Qualified conservation” means the conservation of all or a part of an existing forest that: Has been approved by the appropriate State or local forest conservation program for the purpose of establishing a forest mitigation bank; and Is encumbered in perpetuity by a restrictive easement, covenant, or another similar mechanism recorded in the county land records to conserve its character as a forest. “Reforestation” or “reforested” means 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. “Reforestation” 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. “Reforestation” for a linear project which involves overhead transmission lines may consist of a biological community dominated by trees and woody shrubs with no minimum height or diameter criteria. “Retention” means the deliberate holding and protecting of existing trees, shrubs, or plants on the site according to established standards. “Seedlings” means an unbranched woody plant, less than 24 inches in height and having a diameter of less than 1/2 inch caliper measured at 2 inches above the root collar. “Selective clearing” means the careful and planned removal of trees, shrubs, and plants using specific standards and protection measures under an approved forest conservation plan. “Stream buffer” means all lands lying within 50 feet, measured from the top of each normal bank of any perennial or intermittent stream. “Stream restoration project” means an activity that: Is designed to stabilize stream banks or enhance stream function or habitat located within an existing stream, waterway, or floodplain; Avoids and minimizes impacts to forests and provides for replanting on–site an equivalent number of trees to the number removed by the project; May be performed under a municipal separate storm sewer system permit, a watershed implementation plan growth offset, or another plan administered by the State or local government to achieve or maintain water quality standards; and Is not performed to satisfy stormwater management, wetlands mitigation, or any other regulatory requirement associated with proposed development activity. “Subdivision” means any division of a parcel of land into 2 or more lots or parcels for the purpose, whether immediate or future, of transfer of ownership, sale, lease, or development. Except as provided in paragraph (2) of this subsection, “tract” means property subject to an application for a grading or sediment control permit or subdivision approval. If property is included in a planned unit development, “tract” means the entire property subject to the planned unit development. “Tree” means a large, woody plant having 1 or several self–supporting stems or trunks and numerous branches that reach a height of at least 20 feet at maturity. “Whip” means an unbranched woody plant greater than 24 inches in height and having a diameter of less than 1 inch caliper measured at 2 inches above the root collar.

Except as provided in subsection (b) of this section, this subtitle shall apply to any public or private subdivision plan or application for a grading or sediment control permit by any person, including a unit of State or local government on areas 40,000 square feet or greater. The provisions of this subtitle do not apply to: Any construction activity that is subject to § 5–103 of this title; Any cutting or clearing of forest in areas governed by the Chesapeake Bay Critical Area Protection Law (Title 8, Subtitle 18 of this article); Commercial logging and timber harvesting operations, including any harvesting conducted under the forest conservation and management program under § 8–211 of the Tax – Property Article: That were completed before July 1, 1991; or That were completed on or after July 1, 1991, on property that is not the subject of an application for a grading permit for development within 5 years after the logging or harvesting operation. However, after this 5–year period, the property shall be subject to this subtitle; Any agricultural activity that does not result in a change in land use category, including agricultural support buildings and other related structures built using accepted best management practices; The cutting or clearing of public utility rights–of–way or land for electric generating stations licensed pursuant to § 7–204, § 7–205, § 7–207, or § 7–208 of the Public Utilities Article, provided that: Any required certificates of public convenience and necessity have been issued in accordance with § 5–1603(f) of this subtitle; and The cutting or clearing of the forest is conducted so as to minimize the loss of forest; Any routine maintenance of public utility rights–of–way; Any activity conducted on a single lot of any size or a linear project provided that: The activity does not result in the cutting, clearing, or grading of more than 20,000 square feet of forest; and The activity on the lot or linear project will not result in the cutting, clearing, or grading of any forest that is subject to the requirements of a previous forest conservation plan prepared under this subtitle; Any strip or deep mining of coal regulated under Title 15, Subtitle 5 or Subtitle 6 of the Environment Article and any noncoal surface mining regulated under Title 15, Subtitle 8 of the Environment Article; Any activity required for the purpose of constructing a dwelling house intended for the use of the owner, or a child of the owner, if the activity does not result in the cutting, clearing, or grading of more than 20,000 square feet of forest; A county that has and maintains 200,000 acres or more of its land area in forest cover; The cutting or clearing of trees to comply with the requirements of: 14 C.F.R. § 77.25 relating to objects affecting navigable airspace, provided that the Federal Aviation Administration has determined that the trees are a hazard to aviation; or Subject to subsection (c) of this section, § 5–703 of the Transportation Article relating to obstructions to air navigation, provided that, if a dispute arises regarding the cutting or clearing of trees, the Maryland Aviation Administration makes the final determination whether the trees should be cut or cleared; Any stream restoration project for which the applicant for a grading or sediment control permit has executed a binding maintenance agreement of at least 5 years with the affected property owner; and Maintenance or retrofitting of a stormwater management structure that may include clearing of vegetation or removal and trimming of trees, so long as the maintenance or retrofitting is within the original limits of disturbance for construction of the existing structure, or within any maintenance easement for access to the structure. An exemption under subsection (b)(11)(ii) of this section does not apply to the cutting or clearing of trees to facilitate the expansion or extension of the boundaries of any airport or runway. For an application for subdivision or sediment and erosion control or grading for a site with more than 50% of the net tract area governed by Title 8, Subtitle 18 of this article, the Department or local authority may allow an applicant to extend critical area forest protection measures instead of meeting the requirements of this subtitle.

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. 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. A unit of local government which has an existing program of forest conservation, or subsequently adopts such a program prior to December 31, 1992, may continue to administer its program prior to approval by the Department of the local forest conservation program. A municipality which has planning and zoning authority may, with the concurrence of the county and the Department, assign its obligations under this subtitle to the county. By July 1, 1992, the Department shall either approve a proposed local forest conservation program as submitted by the local authority or provide a written notice of program elements needing revision. Local forest conservation programs requiring revisions shall be resubmitted to the Department within 2 months of the date the Department notified the local authority of the need for revisions. All units of local government with planning and zoning authority shall submit to the Department, by December 31, 1992, their adopted forest conservation program which meets or is more stringent than the requirements and standards of this subtitle. A local forest conservation program, which has been approved by the Department, shall include: A policy document and all applicable new and amended local ordinances relating to implementation of the regulated activities, exemptions, the review, approval and appeal processes, incentives, legal instruments for protection, enforcement program, and penalties; and A technical manual which outlines submittal requirements for forest stand delineations, required information for the approval of a forest conservation plan, specific forest conservation criteria and protection techniques. A local authority shall review and amend, as appropriate, all current local ordinances, policies and procedures that are inconsistent with the intent and requirements of this subtitle such as parking, road width, setback, curb and gutter, grading, and sidewalk requirements. A local forest conservation program, when approved by the Department, may: Allow clustering and other innovative land use techniques that protect and establish forests where open space is preserved, sensitive areas are protected, and development is physically concentrated; and Waive the requirements of this subtitle for previously developed areas covered by impervious surface and located in priority funding areas at the time of the application for subdivision plan, grading, or sediment control permit approval. Failure to submit a proposed local forest conservation program under subsection (a) of this section or failure to adopt a program approved by the Department prior to December 31, 1992, under subsection (b) of this section shall result in the Department’s assumption of review and approval of all forest conservation plans within the jurisdiction of that local authority. The Department shall conduct a review of each local authority’s program at least once every 2 years from the date of initial departmental approval. In its biennial review, the Department shall evaluate the level of compliance with the performance standards and required forest conservation. If a local authority’s program is found to be deficient by the Department, then the Department shall give notice and allow the local authority 90 days for compliance. If, after 90 days, a local authority has failed to comply with the terms of a notice given by the Department, the Department may do one or more of the following: Assume review and approval of all forest conservation plans within the jurisdiction of the local authority until the deficiencies are corrected; On a finding by an auditor made in consultation with the Office of the Attorney General that a local authority has misappropriated local forest conservation funds, the Department may require the local authority to submit payment to the State Conservation Fund for the amount of any misappropriated local conservation funds; and Request that the Attorney General investigate payments and expenditures of funds collected by the local authority under this subtitle. After December 31, 1992, the Public Service Commission shall give due consideration to the need to minimize the loss of forest and the provisions for afforestation and reforestation set forth in this subtitle together with all applicable electrical safety codes, when reviewing applications for a certificate of public convenience and necessity issued pursuant to § 7–204, § 7–205, § 7–207, or § 7–208 of the Public Utilities Article. A local authority or the Department in its administration of a State forest conservation program in jurisdictions which do not have an approved local program in effect may establish reasonable and appropriate procedures for the recovery of all costs incurred in the development, implementation, administration, and enforcement of the local forest conservation program or the State forest conservation program for jurisdictions without an approved forest conservation program.

Except as provided in subsection (b)(2) and (3) of this section, after December 31, 1992, or after the date on which a local program has been adopted under § 5–1603 of this subtitle, whichever occurs first, a person making application for subdivision or grading or sediment control permits on areas greater than 40,000 square feet shall submit a forest stand delineation for the entire site prepared by a licensed forester, professional landscape architect, or other qualified professionals that may be approved by the State or a local authority in the manner required by the approved program. The forest stand delineation shall be used during the preliminary review process to determine the most suitable and practical areas for forest conservation. Subject to paragraphs (2) and (3) of this subsection, and except when waived by the Department during approval or review of a local program, the forest stand delineation shall contain the following components: A topographic map delineating intermittent and perennial streams, and steep slopes over 25%; A soils map delineating soils with structural limitations, hydric soils, or soils with a soil K value greater than 0.35 on slopes of 15% or more; Forest stand maps indicating species, location, and size of trees and showing dominant and codominant forest types; and Any other requirements necessary to carry out the purposes of this subtitle established in regulations adopted by the Department or imposed by a local authority. A concept plat or plan, preliminary plat or plan, sediment and erosion control plan, site plan, or other appropriate document, verified by a site visit if appropriate, may substitute for the forest stand delineation required by paragraph (1) of this subsection if: There is no forest on the site; or No forest on the site is to be cut, cleared, or graded for the proposed use, and all forest on the site is to be subject to a long-term protective agreement. The Department shall provide for, and a local authority may adopt, a simplified process or processes for forest stand delineation under this section, including: Limiting required forest sampling to areas not proposed for protection under long-term protective agreements as long as all priority areas on the site are protected; and Minimizing overlapping mapping and sampling requirements for sites where no disturbance of priority forest retention areas is contemplated. Within 30 days from receipt of the forest stand delineation, the Department or local authority shall notify the applicant whether the forest stand delineation is complete and correct. If the Department or local authority fails to notify the applicant about the delineation within 30 days, the delineation shall be treated as complete and correct. The Department or local authority may require further information or provide for an extension of this deadline for an additional 15 days for extenuating circumstances.

Upon receipt of notice that the forest stand delineation is complete and correct, the applicant shall submit to the State or local authority a proposed forest conservation plan for the site. The forest conservation plan shall be developed by a licensed forester, professional landscape architect, or other qualified professionals that may be approved by the State or a local authority. A proposed forest conservation plan shall contain: A map of the site drawn at the same scale as the grading or subdivision plan; A table listing the net tract area in square feet, the square foot area of forest conservation required for the site, and the square foot area of forest conservation provided by the applicant on–site and off–site, if applicable; A clear graphic indication of the forest conservation provided on the site showing areas where both retention of existing forest or afforestation, by any and all methods, is planned; An anticipated construction timetable, including the sequence for tree conservation procedures; An afforestation or reforestation plan with a timetable and description of needed site and soil preparation, species, size, and spacing to be utilized; Locations and types of protective devices to be used during construction activities to protect trees and areas of forest designated for conservation; Limits of disturbance delineated; Stockpile areas delineated; A binding 2–year management agreement that details how the areas designated for afforestation or reforestation will be maintained to ensure protection or satisfactory establishment including: Watering; and Reinforcement planting provisions if survival falls below required standards; and Any other requirement established in regulations adopted by the Department, or imposed by a local authority. At least 20 days before approval of the forest conservation plan, the Department or local authority shall: Provide notice that is consistent with local authority notice requirements to all property owners abutting and adjacent to the boundary of the subject property of any proposed clearing of a priority retention area as described in § 5–1607(c) of this subtitle; and On a net tract area of at least 5 acres and if at least 75% of the priority retention area is proposed to be cleared, provide an opportunity for written and verbal comment before plan approval; or For any other project where priority retention area is proposed for clearing, provide an opportunity for public written comment before plan approval. Property separated from the subject property by a public right–of–way shall be considered abutting and adjacent. Within 45 days from receipt of the forest conservation plan, the Department or local authority shall notify the applicant whether the forest conservation plan is complete. If the Department or local authority fails to notify the applicant about the forest conservation plan within 45 days, the plan shall be treated as complete and approved. The Department or local authority may require further information or provide for an extension of this deadline for an additional 15 days for extenuating circumstances. In addition, at the request of the applicant, the State or local authority may extend this deadline for extenuating circumstances. A person petitioning for judicial review of an approved forest conservation plan shall file the petition in accordance with the Maryland Rules not later than 30 days after approval of the forest conservation plan. Any judicial review of a forest conservation plan shall be: Conducted in accordance with the Maryland Rules; and Limited to the record compiled by the Department or the local authority.

For the following land use categories, tracts having less than 20% of the net tract area in forest cover shall be afforested up to 20% of the net tract area: Agriculture and resource areas; and Medium density residential areas. For the following land use categories, tracts having less than 15% of the net tract area in forest cover shall be afforested up to 15% of the net tract area: Institutional development areas; High density residential areas; Mixed use and planned unit development areas; and Commercial and industrial use areas. Afforestation requirements must conform to the conditions in §§ 5–1607 and 5–1610 of this subtitle, including payment into the Forest Conservation Fund, if afforestation on–site or off–site cannot be reasonably accomplished. The afforestation requirements under this subsection shall be accomplished within 1 year or 2 growing seasons after the completion of the development project. If afforestation cannot be reasonably accomplished on–site or off–site, the requirement to contribute money to a Forest Conservation Fund under § 5–1610 of this subtitle shall be met within 90 days after the completion of the development project. Linear projects that involve no change in land use may not be subject to afforestation requirements. Solar photovoltaic facilities may not be subject to afforestation requirements under this subtitle. There is a forest conservation threshold established for all land use categories as provided in subsection (c) of this section. The forest conservation threshold means the percentage of the net tract area at which the reforestation requirement changes from a ratio of 1/4 acre planted for every 1 acre removed to a ratio of 2 acres planted for every 1 acre removed. After every reasonable effort to minimize the cutting or clearing of trees and other woody plants is exhausted in the development of a subdivision plan and grading and sediment control activities and implementation of the forest conservation plan, the forest conservation plan shall provide for reforestation, or payment into the Forest Conservation Fund, according to the formula set forth in subsection (b) of this section and consistent with the following forest conservation thresholds for the applicable land use category: Agricultural and resource areas: 50% of net tract area; Medium density residential areas: 25% of net tract area; Institutional development areas: 20% of net tract area; High density residential areas: 20% of net tract area; Mixed use and planned unit development areas: 15% of net tract area; and Commercial and industrial use areas: 15% of net tract area. Subject to the provisions of paragraph (2) of this subsection, for all existing forest cover measured to the nearest 1/10 acre cleared on the net tract area above the applicable forest conservation threshold, the area of forest removed shall be reforested at a ratio of 1/4 acre planted for every 1 acre removed. Each acre of forest retained on the net tract area above the applicable forest conservation threshold shall be credited against the total number of acres required to be reforested under paragraph (1) of this subsection. For all existing forest cover measured to the nearest 1/10 acre cleared on the net tract area below the applicable forest conservation threshold, the area of forest removed shall be reforested at a ratio of 2 acres planted for every 1 acre removed. The reforestation requirements under this section shall be accomplished within 1 year or 2 growing seasons after completion of the development project. If reforestation cannot be reasonably accomplished on–site or off–site, the requirement to contribute money to a Forest Conservation Fund under § 5–1610 of this subtitle shall be met within 90 days after completion of the development project. A unit of local government with planning and zoning authority may adopt forest conservation thresholds and afforestation and reforestation requirements as part of its local forest conservation program that are more stringent than the forest conservation thresholds and afforestation and reforestation requirements in this section.

The preferred sequence for afforestation and reforestation shall be established by the State or local authority in accordance with the following after all techniques for retaining existing forest cover on–site have been exhausted: Those techniques that enhance existing forest and involve selective clearing or supplemental planting on–site; On–site afforestation or reforestation may be utilized where the retention options have been exhausted. In those cases, the method shall be selected in accordance with subsection (b) of this section, and the location shall be selected in accordance with subsection (d) of this section; Off–site afforestation or reforestation in the same watershed or in accordance with an approved master plan may be utilized where the applicant has demonstrated that no reasonable on–site alternative exists, or where: Any on–site priority areas for afforestation or reforestation have been planted in accordance with subsection (d) of this section; and The applicant has justified to the satisfaction of the State or local jurisdiction that environmental benefits associated with off–site afforestation or reforestation would exceed those derived from on–site planting; In these cases, the method shall be selected in accordance with subsection (b) of this section, and the location shall be selected in accordance with subsection (d) of this section; and Off–site afforestation or reforestation may include the use of forest mitigation banks which have been so designated in advance by the State or local forest conservation program which is approved by the Department; and The State or local jurisdiction may allow an alternative sequence for a specific project 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. Standards for meeting afforestation or reforestation requirements shall be established by the State or local program using one or more of the following methods: Forest creation in accordance with a forest conservation plan using one or more of the following: Transplanted or nursery stock; Whip and seedling stock; or Natural regeneration where it can be shown to adequately meet the objective of the forest conservation plan. The use of qualified conservation completed in a forest mitigation bank to meet: Up to 50% of the afforestation or reforestation requirement, in which case, the afforestation or reforestation credit granted may not exceed 50% of the forest area encumbered in perpetuity; or If a local jurisdiction proposes and, after public comment, the Department approves a written justification for the increase, up to 60% of the afforestation or reforestation requirement, in which case the afforestation or reforestation credit granted may not exceed 50% of the forest area encumbered in perpetuity. The use of street trees in a municipal corporation with a tree management plan, in an existing population center designated in a county master plan that has been adopted to conform with the Economic Growth, Resource Protection, and Planning Act of 1992, or in any other designated area approved by the Department as part of a local program, under criteria established by the local program, subject to the approval of the Department, using: Street trees as a permissible step in the priority sequence for afforestation or reforestation and, based on a mature canopy coverage, may grant full credit as a mitigation technique; and Acquisition as a mitigation technique of an off–site protective easement for existing forested areas not currently protected in perpetuity, in which case the afforestation or reforestation credit granted may not exceed 50% of the area of forest cover protected. When all other options, both on–site and off–site, have been exhausted, landscaping as a mitigation technique, conducted under an approved landscaping plan that establishes a forest at least 35 feet wide and covering at least 2,500 square feet of area. The following trees, shrubs, plants, and specific areas shall be considered priority for retention and protection, and they shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the State or local authority, that reasonable efforts have been made to protect them and the plan cannot reasonably be altered: Trees, shrubs, and plants located in sensitive areas including 100–year floodplains, intermittent streams and their buffers of at least 50 feet from the stream channel, perennial streams and their buffers of at least 100 feet from the stream channel, coastal bays and their buffers, steep slopes, and critical habitats; Contiguous forest that connects the largest undeveloped or most vegetated tracts of land within and adjacent to the site; Forest suitable for forest interior–dwelling species; Forest located in a Tier II or Tier III high quality watershed as identified by the Department of the Environment; Forest located in a water resource protection zone, a reservoir watershed, or a wellhead protection area as identified by a local jurisdiction; and Forests in urban areas: As delineated in the priority urban forest mapping included in the State Forest Conservation Technical Manual requirements; or That are most important for providing wildlife habitat or mitigating flooding, high temperatures, or air pollution. The following trees, shrubs, plants, and specific areas shall be considered priority for retention and protection, and they shall be left in an undisturbed condition unless the applicant has demonstrated, to the satisfaction of the State or local authority, that the applicant qualifies for a variance under § 5–1611 of this subtitle: Trees, shrubs, or plants identified on the list of rare, threatened, and endangered species of the U.S. Fish and Wildlife Service or the Department; Trees that are part of a historic site or associated with a historic structure or designated by the Department or local authority as a national, State, or local Champion Tree; and Trees having a diameter measured at 4.5 feet above the ground of: 30 inches; or 75% of the diameter, measured at 4.5 feet above the ground, of the current State Champion Tree of that species as designated by the Department. The Department or a local authority shall issue written findings and justification for any clearing of a priority retention area described in paragraph (1) or (2) of this subsection. Any judicial review of a final determination made under this paragraph shall be: Conducted in accordance with the Maryland Rules; and Limited to the record compiled by the Department or the local authority. The following shall be considered priority for afforestation or reforestation: Establish or enhance forest buffers adjacent to intermittent and perennial streams and coastal bays to widths of at least 50 feet; Establish or increase existing forested corridors to connect existing forests within or adjacent to the site and, where practical, forested corridors should be a minimum of 300 feet in width to facilitate wildlife movement; Establish or enhance forest buffers adjacent to critical habitats where appropriate; Establish or enhance forested areas in 100–year floodplains; Establish plantings to stabilize slopes of 25% or greater and slopes of 15% or greater with a soil K value greater than 0.35 including the slopes of ravines or other natural depressions; Establish buffers adjacent to areas of differing land use where appropriate, or adjacent to highways or utility rights–of–way; Establish forest areas adjacent to existing forests so as to increase the overall area of contiguous forest cover, when appropriate; and Use native plant materials for afforestation or reforestation, when appropriate. As part of the development of a forest conservation program, the State or local government shall develop provisions for: Preservation of areas described in subsections (c) and (d)(1) and (3) of this section; Retention as forest of all land forested, afforested, or reforested under this subtitle; and Limitation of uses of forest to those that are not inconsistent with forest conservation, such as recreational activities and forest management under subsection (f) of this section. The provisions required in paragraph (1) of this subsection may include protective agreements for areas of forest conservation, including conservation easements, deed restrictions, and covenants. An owner may place land that is forested, afforested, or reforested under this subtitle in the forest conservation and management program under § 8–211 et seq. of the Tax – Property Article or in a forest management plan prepared by a licensed forester and approved by the local authority or the State. Reforestation shall be required when the final regeneration harvest is complete or if determined to be necessary due to the lack of adequate natural regeneration.

The review of the forest conservation plan shall be concurrent with the review process of the State or local authority for the subdivision plan, or the grading or sediment control permit, whichever may be submitted first. Before the approval of the final subdivision plan, or the issuance of the grading or sediment control permit by the State or local authority, the applicant shall have an approved forest conservation plan that shall include the requirements in §§ 5-1605, 5-1606, and 5-1607 of this subtitle. Any person found to be in noncompliance with this subtitle, regulations adopted under this subtitle, the forest conservation plan or the associated 2-year management agreement shall be assessed by the Department or local authority, the penalty of 30 cents per square foot of the area found to be in noncompliance with required forest conservation. This amount shall be paid into the appropriate local or State Forest Conservation Fund.

By December 31, 1991, the Department, after consulting with local government and the real estate development, building, and environmental communities, shall adopt regulations, including the development of guidance manuals to: Implement this subtitle and set requirements and standards which establish: Standards of performance required in forest stand delineations and forest conservation plans including the submittal process; Criteria for local forest conservation programs; and Implementation processes for the Department’s administration in the absence of a local forest conservation program; Assist and guide local authorities in the development of their local forest conservation program by providing: Training of local officials; and A model local government ordinance that meets the requirements of this subtitle; and Assist developers, planners, surveyors, engineers, foresters, biologists, and landscape architects in: Developing methodology and gathering natural resource information required in the preparation of a forest stand delineation and a forest conservation plan; Determining the size, location, and orientation of forest areas to be retained; Determining the size, location, and orientation of areas to be afforested or reforested; Implementing protection techniques and devices used in preserving specimen trees or areas designated for retention during construction; and Determining species, spacing, and timing of afforestation or reforestation. All 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. By December 31, 1992, the Department shall prepare and provide to local authorities a statewide forest resource inventory that shall: Be updated every 5 years or as deemed appropriate by the Department; and Include a list of potential sites for reforestation or afforestation of both publicly and privately owned land on a county by county basis.

In this section the following words have the meanings indicated. “Fund” means the Forest Conservation Fund. “Priority funding area” has the meaning stated in § 5–7B–02 of the State Finance and Procurement Article. There is a Forest Conservation Fund in the Department. Except as provided in subsection (h) of this section, if any person subject to this subtitle demonstrates to the satisfaction of the appropriate State or local authority that the requirements for reforestation or afforestation on–site or off–site cannot be reasonably accomplished and appropriate credits generated by a forest mitigation bank in the same county or watershed are not available, the person shall contribute money to the Fund: On or before September 30, 2014: For a project inside a priority funding area, at a rate of 30 cents per square foot of the area of required planting; and For a project outside a priority funding area, at a rate of 36 cents per square foot of the area of required planting; and After September 30, 2014: For a project inside a priority funding area, at a rate adjusted for inflation as determined by the Department annually by regulation; and For a project outside a priority funding area, at a rate that is 20% higher than the rate set under item (i) of this item. Money collected by the State or a local authority under § 5–1608(c) or § 5–1612 of this subtitle for noncompliance with this subtitle or regulations adopted under this subtitle or for noncompliance with a forest conservation plan or the associated 2–year management agreement shall be deposited in the Fund. The Department shall accomplish the reforestation or afforestation for which the money is deposited within 5 years or 6 growing seasons, as appropriate, after receipt of the money. Money deposited in the Fund under subsection (c) of this section shall remain in the Fund for a period of 5 years or 6 growing seasons, and at the end of that time period, any portion that has not been used or encumbered to meet the afforestation or reforestation requirements shall be returned to the person who provided the money to be used for documented tree planting in the same county or watershed beyond that required by this subtitle or other applicable statutes. Money deposited in the Fund under subsection (c) of this section may only be spent on reforestation and afforestation, including site identification, acquisition, and preparation, maintenance of existing forests, and achieving urban canopy goals, and may not revert to the General Fund of the State. Any investment earnings of the Fund shall be credited to the General Fund of the State. Except as provided in subparagraph (ii) or (iii) of this paragraph, the reforestation or afforestation requirement under this subsection shall occur in the county and watershed in which the project is located. If the reforestation or afforestation cannot be reasonably accomplished in the county and watershed in which the project is located, then the reforestation or afforestation shall occur in the county or watershed in the State in which the project is located. If the reforestation or afforestation cannot be reasonably accomplished in the county or watershed in which the project is located, then the reforestation or afforestation shall be accomplished through purchase of credits in, establishment, or maintenance of a forest mitigation bank in accordance with regulations of the Department. The Reforestation Fund may not be used to finance administrative activities associated with a mitigation bank and any credits created by the Reforestation Fund may not be sold to compensate for additional forest impacts. Money deposited in the Fund under subsection (d) of this section may be used by the Department for the purpose of implementing this subtitle. In lieu of a State Forest Conservation Fund, any local authority with an approved forest conservation program may establish a forest conservation fund, to be administered by the local authority, to allow a payment by any person who has demonstrated to the satisfaction of the local authority that: The requirements for reforestation and afforestation on–site and off–site cannot be reasonably accomplished; and Appropriate credits generated by a forest mitigation bank in the same county or watershed are not available. Subject to subparagraph (ii) of this paragraph, the rates shall be: For a project inside a priority funding area, at least the same as the rates established for the State Forest Conservation Fund under subsection (c) of this section; and For a project outside a priority funding area, 20% higher than the rates established under item 1 of this subparagraph. Subject to subparagraph (iii) of this paragraph, if a local jurisdiction establishes rates for projects that are higher than the minimum rates established under subsection (c) of this section, the local authority may use a rate for a project: Inside a priority funding area that is 20% lower than the rate calculated under subparagraph (i)2 of this paragraph; or Outside a priority funding area that is 20% higher than the rate calculated under subparagraph (i)1 of this paragraph. The rate established under subparagraph (ii)1 of this paragraph for a project inside a priority funding area may not be lower than the rate established for the State Forest Conservation Fund under subsection (c) of this section. A local authority that has an established forest conservation fund shall provide to the Department: A general plan identifying appropriate and potentially available areas for mitigation projects; and Detailed accounting procedures for accurately tracking money received into and expended out of the forest conservation fund. Local forest conservation fund mitigation plans and accounting procedures shall be made available to the public. Money deposited in the local forest conservation fund under subsection (h) of this section may only be spent on reforestation and afforestation, including the costs directly related to site identification, acquisition, prepurchase, and preparation, maintenance of existing forests, and achieving urban canopy goals, and may not revert to any other local general fund. Except as provided in subparagraph (ii) or (iii) of this paragraph, the reforestation or afforestation requirement under this subsection shall occur in the county and watershed in which the project is located. If the reforestation or afforestation cannot be reasonably accomplished in the county and watershed in which the project is located, then the reforestation or afforestation shall occur in the county or watershed in the State in which the project is located. If the reforestation or afforestation cannot be reasonably accomplished in the county or watershed in which the project is located, then the reforestation or afforestation shall be accomplished through purchase of credits in, establishment, or maintenance of a forest mitigation bank in accordance with regulations of the local forest conservation program. The Reforestation Fund may not be used to finance administrative activities associated with a mitigation bank and any credits created by the Reforestation Fund may not be sold to compensate for additional forest impacts. A local authority, consistent with § 5–1606 of this subtitle: May not collect money for deposit into its forest conservation fund unless the local authority has submitted to the Department the general mitigation plan and accounting procedures required under subsection (h–1) of this section; and Shall ensure that the equivalent number of acres for which money is collected and paid into its forest conservation fund is mitigated in accordance with afforestation, reforestation, and conservation priorities and techniques authorized under § 5–1607 of this subtitle. Money collected by the local authority under § 5–1608(c) of this subtitle for noncompliance with this subtitle or regulations or ordinances adopted under this subtitle for noncompliance with a forest conservation plan or the associated 2–year management agreement shall be deposited in the local fund. The rate shall be 30 cents per square foot of the area found to be in noncompliance with the required forest conservation. Money deposited in a local forest conservation fund under subsection (j) of this section may be used by the local authority for purposes related to implementing this subtitle.

The Department shall develop standards and adopt regulations for the creation and use of forest mitigation banks, including criteria for tracking, crediting, maintaining, bonding, and reporting mitigation bank activities. A local jurisdiction may develop procedures for establishing forest mitigation banks as part of its forest conservation program. After December 31, 2020, mitigation banks may be allowed only: If the application was submitted before December 31, 2020; or When using: Qualified conservation located in priority retention areas as identified in § 5–1607(c) of this subtitle; or Newly planted forest located in priority afforestation or reforestation areas as identified in § 5–1607(d) of this subtitle or as identified in a comprehensive plan adopted by a local jurisdiction. The establishment of mitigation banks and their use may not alter the sequence for retention, reforestation, or afforestation on a development site as outlined in § 5–1607 of this subtitle. Criteria established by local or State programs for the use and establishment of forest mitigation banks shall include protection and conservation in perpetuity of forest mitigation banks consistent with reasonable management plans, through methods that include easements, covenants, or similar mechanisms that shall be in place at the time credits are withdrawn. This section may not be construed to require the Department or a local jurisdiction to: Establish or fund State or local mitigation banks; Fund the establishment of forest mitigation banking by the private sector; or Use State or local government land for forest mitigation banking. Credits in a mitigation bank may not be approved for debiting until construction or qualified conservation of the mitigation bank is complete. A mitigation bank that requires construction shall maintain sufficient credits in reserve to cover anticipated expenses of completion of the mitigation bank.

In the preparation of the State or local forest conservation programs, the State and local authorities shall provide for the granting of variances to the requirements of this subtitle, where owing to special features of a site or other circumstances, implementation of this subtitle would result in unwarranted hardship to an applicant. Variance procedures adopted under this section shall: Be designed in a manner consistent with the spirit and intent of this subtitle; and Assure that the granting of a variance will not adversely affect water quality.

The enforcement provisions in this section and § 5–1608 of this subtitle are in lieu of any other provision in this title. In addition to the enforcement authority granted the Department, the enforcement provisions of this section may be exercised by any local authority that has adopted a forest conservation program, in addition to any enforcement provisions available to the local authority. The Department or a local authority may revoke an approved forest conservation plan for cause, including violation of conditions of the plan, obtaining a plan approval by misrepresentation, failing to disclose a relevant or material fact, or change in conditions. The Department or a local authority shall notify the violator in writing and provide an opportunity for a hearing. The Department or a local authority may issue a stop work order against any person who violates any provision of this subtitle or any regulation, order, approved plan, or management agreement. A person who violates any provision of this subtitle or any regulation, order, plan, or management agreement under this subtitle is liable for a penalty not exceeding $1,000 which may be recovered in a civil action brought by the Department or a local authority. Each day a violation continues is a separate violation under this subtitle. The court may issue an injunction requiring the person to cease the violation and take corrective action to restore or reforest an area. A local authority conducting enforcement activity in accordance with this section or § 5–1608(c) of this subtitle shall give notice to the Department within 15 days after the commencement of the enforcement activity.

On or before September 30 of each year, the Department shall submit, subject to § 2–1257 of the State Government Article, to the Senate Education, Health, and Environmental Affairs Committee and the House Environment and Transportation Committee a statewide report, compiled from local authorities’ reports to the Department, on: The number, location, and type of projects subject to the provisions of this subtitle; The amount and location of acres cleared, conserved, and planted, including any areas which utilize forest mitigation bank credits or areas located in the 100 year floodplain, in connection with a development project; The amount of reforestation and afforestation fees and noncompliance penalties collected and expended, the number of acres for which the fees were collected, and the number of acres reforested, afforested, or conserved using the fees; The costs of implementing the forest conservation program; The size, location, and protection of any local forest mitigation banks which are created under a local or State program; The number, location, and type of violations and type of enforcement activity conducted in accordance with this subtitle; and To the extent practicable, the size and location of all conserved and planted forest areas, submitted in an electronic geographic information system or computer aided design format.