Agenda Item 5B
July 29,2014
Action
MEMORANDUM
TO:
County Council
FROM:
SUBJECT:
~ichael
Faden, Senior Legislative
~~~~Yhill
Amanda Mihill, Legislative Attome>t)flfl.J'V'
W'
Action:
Expedited Bill 25-14, Forest Conservation - Amendments
and
Environment
Committee
Transportation,
Infrastructure,
Energy
recommendation (3-0): enact with amendments.
Expedited Bill 25-14, Forest Conservation - Amendments, sponsored by the Council
President at the request ofthe Planning Board, was introduced on May 6, 2014. A public hearing
was held on June 10 at which representatives of the County Executive and the Park and Planning
Commission supported the Bill (see testimony, ©34-35). A Transportation, Infrastructure,
Energy and Environment Committee worksession was held on July 21.
Bill 25-14 would amend the Forest Conservation Law (FCL) for consistency with State law
by exempting stream restoration projects and maintenance or retrofitting of stormwater management
structures from certain requirements ofthe law. Bill 25-14 would also make other improvements to
the law which are explained in the Planning Board memo (see ©11-12).
Committee recommendations
1) Should removing trees hazardous to aviation be exempt from the
FeL?
Revenue
Authority Executive Director Keith Miller urged the Council to exempt removing trees that are a
hazard to aviation from the forest conservation requirements. He noted that this exception is
presently in the State FCL and the County tree canopy law. Department of Environmental
Protection (DEP)
staff
agreed that FAA projects should
be
exempt from the FCL but thought this
amendment might not be needed.·
The Committee recommended
inserting the following
amendment after ©4, line 69:
(w)
cutting or clearing any tree by
an
existing aimort operating with all applicable
permits to comply with applicable provisions of any federal law or regulation
governing the obstruction of navigable airspace if the Federal Aviation
Administration has determined that the tree creates a hazard to aviation.
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This language is essentially identical to language in the tree canopy law and is consistent with state
law.
2) County Attorney amendments
In
addition to minor technical amendments, the County
Attorney suggested 2 substantive amendments to Bill 25-14:
a) Definition/or "developed area".
As introduced, "developed area" would be defined (©2,
lines 5-7) as:
Developed area
means the portion of
~
property which has been altered from its natural state
Qy
the construction of
~
building, recreational facility, road or alley, rail line, athletic field,
stonnwater management
facility,
parking lot, or utility.
The County Attorney's Office notes that this definition is quite narrow and might not cover
some improvements, such as a bike path. To avoid undue restrictiveness, the
Committee
recommended
(3-0) deleting [(or]] and inserting at the end of the sentence: or similar
improvement..
b) Small lot exemption
This Bill would amend the FCL exemption for development of less
than 5,000 square feet as follows:
(t) a modification to an existing non-residential developed property if:
(1)
no more than [5000J 5,000 square feet of forest [will be clearedJ is ever cleared in
one event or cumulatively over multiple events from the first exemption;
The County Attorney believes that this language is awkward and unclear. The Planning
Board transmittal noted that its intent is to clarify. that to qualify for this exemption, no
more than 5,000 square feet of forest can be removed cumulatively. Therefore, the
Committee recommended
(3-0) the following redraft to better achieve the intent:
(t) a modification to an existing non-residential developed property if:
(1) no more than [5000] 5,000 square feet of forest [will be cleared]
ever cleared
[[in]] at one [[event]]
or cumulatively [[over multiple events from the first
exemption]] after an exemption is issued;
3) DEP
amendments
DEP
staff
proposed 3 minor amendments, shown as comments m3­
m5 in the markup on ©39-40. The
Committee recommended
incorporating these amendments.
New Issue
Diane Cameron and Amanda John submitted testimony on behalf of the Montgomery
County Stonnwater Partners and Potomac Conservancy stating that they would nonnally oppose
creating new exemptions to the Forest Conservation Law (©41-49). However, they indicate that
they are neutral on this bill if:
(1)
the County comments in writing to working with the Stonnwater
partners on a Green Infrastructure Plan as part of the County's MS-4 program; and (2) iflanguage is
2
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added to the bill to require a maintenance agreement requiring 5-year survival of all trees affected
by the project, annual inspection of stream restoration projects for 5 years, and annual reporting of
stream restoration and stormwater facility projects (©48-49).
Bill 25-14 would require a 5-year maintenance agreement with the affected property owner.
Council staff notes that Section 22A-12 of Forest Conservation Law requires a 2-year maintenance
agreement as part of a Forest Conservation Plan. Neither the County's Tree Canopy Law nor the
Roadside Tree Law requires a maintenance agreement or a guarantee for a certain survivable period
for planted trees. Council staff has asked DEP staff to
be
prepared to address these requests at
Tuesday's Council session.
This packet contains:
Expedited Bill 25-14
Legislative Request Report
Memo from Planning Board
State law (House Bill 706)
Fiscal and Economic Impact statement
Hearing testimony
Memo from Revenue Authority
DEP amendments
Testimony and e-mails from Diane Cameron
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Circle
#
1
10
11
13
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34
36
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41
3
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Expedited Bill No.
25-14
Concerning: Forest
Conservation
Amendments
Revised:
7123114
Draft No.
~
Introduced:
May 6.2014
Expires:
November 6, 2015
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _---:-:--_ _ _ _ _ __
Sunset Date:
_N:...:.o::..:n~e~---::--
_ _ __
Ch, _ _, Laws of Mont Co. _ _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council President at the request ofthe Planning Board
AN EXPEDITED ACT
to:
(1)
exempt certain stream restoration projects from certain requirements of the forest
conservation law;
(2)
exempt certain maintenance or retrofitting of stormwater management structures
from certain requirements of the forest conservation law; and
(3)
generally amend the forest conservation law.
By amending
Montgomery County Code
Chapter 22A, Forest Conservation - Trees
Sections 22A-3, 22A-4, 22A-5, 22A-ll, 22A-12, 22A-20
Boldface
Underlining
Heading or defined term.
Added to existing law by original bill.
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill
by
amendment.
Existing law unqffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
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EXPEDITED BILL
No.
25-14
1
2
Sec. 1. Sections 22A-3, 22A-4, 22A-5, 22A-ll, 22A-12, and 22A-20 are
amended as follows:
22A-3.
Definitions.
3
4
5
6
*
*
*
Developed area
means the portion of
~
property which has been altered from its
natural state
Qy
the construction of
~
building, recreational facility, road or alley,
rail line, athletic field, stormwater management facility, parking lot, [[or]] utility or
similar improvement.
Developed property
means
~
property that contains
~
developed area.
Development application
means an application, as described in Section 22A-4, filed
7
8
9
10
11
12
with the Planning Board, Planning Director, Board of Appeals, Hearing Examiner, or
Department of Permitting Services, for plan approval or sediment control permit.
13
14
15
*
ill
@
*
*
Stream Restoration Project
means an activity that:
is designed to stabilize stream banks or enhance stream function or
habitat located in 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
Qy
the
project;
16
17
18
19
20
21
ill
may be performed under
permit,
~
~
municipal separate storm sewer system
watershed implementation plan growth offset, or another plan
22
administered
Qy
the State or local government to achieve or maintain
water quality standards; and
23
24
ffi
is not performed to satisfy stormwater management, wetlands
mitigation, or any other regulatory requirement associated with
development application.
~
25
26
27
*
*
*
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forest
conservation law\bill2.docx
(1)
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ExPEDITED BILL
No. 25-14
28
29
22A-4.
Applicability
Except as otherwise expressly provided in this Chapter, this Chapter applies
to:
(a)
a person required by law to obtain an [[initial]] approval or amendment
to
~development
plan [approval], diagrammatic plan [approval], project
plan [approval], preliminary plan of subdivision [approval], or site plan
[approval];
30
31
32
33
34
35
*
22A-S.
Exemptions.
*
36
37
The requirements or Article II do not apply
to:
38
39
*
(t)
(l)
*
*
a modification to an existing non-residential developed property if:
no more
than
[5000] 5,000 square feet of forest [will be cleared]
is ever cleared [[in]] at one [[event]] time or cumulatively [[over
multiple events from the first exemption]] after an exemption is
issued;
(2)
the modification does not [affect] result in the cutting, clearing, or
grading of any forest in a stream buffer or located on property in
a special protection area which must submit a water quality plan;
[and]
(3)
the modification does not require approval of a [new] preliminary
plan of subdivision [plan.]; and
40
41
42
43
44
45
46
47
48
49
50
ill
(y)
the modification does not increase the developed area
Qy
more
than 50%, and the existing development is retained;
51
52
53
maintaining or retrofitting an existing stormwater management structure
it
(j)
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ExPEDITED BILL
No. 25-14
54
55
56
57
58
59
60
61
62
ill
the clearing of vegetation or removal and trimming of trees is for
the maintenance or retrofitting of the structure and in the original
limits of disturbance for construction of the existing facility. or
within any maintenance easement for access to the facility; and
m
the tract is not included in
!!
previously approved forest
conservation plan; [[and]]
M ! !
stream restoration project for which the applicant for
!!
sediment
control permit has:
ill
executed
!!
binding maintenance agreement of at least
with the affected property owner or owners;
~
years
63
64
65
66
67
m
agreed to replace every tree removed and plant the new trees
Uill]]
ill
(w)
before the end of the first planting season after fmal
stabilization; and
confirmed that the tract is not included in
!!
previously approved
forest conservation plan[U1; and
cutting or clearing any tree by an existing airport operating with all
applicable permits to comply with applicable provisions of any federal
law or regulation governing the obstruction of navigable airspace if the
F ederal Aviation Administration has determined that the tree creates a
hazard to aviation.
68
69
70
71
72
73
74
22A-l1.
(b)
Application, review, and approval procedures.
75
76
*
*
*
Project requiring development plan, project plan, preliminary plan of
subdivision, or site plan approval.
77
78
*
(2)
*
*
79
Forest conservation plan.
o
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EXPEDITED BILL
No. 25-14
80
81
(A)
Application.
[Upon notification] After being notified that
the forest stand delineation is complete and correct, the
applicant must submit a forest conservation plan to the
Planning Director.
If the development proposal will
82
83
84
require more than one of the approvals subject to this
subsection, the applicant must submit a preliminary forest
conservation plan to the Planning Director in conjunction
with the first approval and a [mal forest conservation plan
in conjunction with the last approval. If only one approval
subject to this subsection is required, an applicant[, with
the approval of the Planning Board, may] must submit a
preliminary forest conservation plan at the time of the
development [approval] application and a [mal forest
conservation plan before [issuance of] a sediment control
pennit is issued for the tract, but no later than
!!
record plat
is submitted.
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
*
*
*
(C)
[Condition of approval] Approval.
The Planning Board
must review and act on the forest conservation plan [will
be reviewed by the Planning Board] concurrently with the
development plan, project plan, preliminary plan of
subdivision or site plan, as appropriate. [The] Compliance
with the preliminary forest conservation plan, as [may be]
amended by the Board, must be made a condition of any
approval of the first applicable development application.
Compliance with the [mal forest conservation plan, as
amended
Qy
the Board, must be made
!!
condition of any
100
101
102
103
104
105
106
(9
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ExPEDITED BILL
No. 25-14
107
108
approval of the last development application.
For a
development plan, a Planning Board recommendation to
the District Council on the preliminary forest conservation
plan must be made under Section 59-D-l.4. A fmal forest
conservation plan must be approved
Qy
the Planning Board
or Planning Director, as appropriate, before the Planning
Board approves
!!
record plat.
109
110
111
.112
113
114
115
116
*
(d)
*
*
*
*
Project requiring a sediment control permit only.
*
(3)
117
118
119
120
121
122
123
124
125
126
127
128
129
130
131
132
133
Issuance ofsediment control permit.
A sediment control pennit
must not be issued to a person who must comply with this Article
until[:
(A)] a fmal forest conservation plan, if required, is approved[;
and
(B)
any fmancial security instrument required under this
Chapter is provided].
*
22A-12.
(g)
*
*
*
*
Retention, afforestation, and reforestation requirements.
*
In lieu fee.
(1)
General.
If a person satisfactorily demonstrates that the
requirements for reforestation or afforestation on-site or off-site
cannot be reasonably accomplished, the person must contribute
money to the forest conservation fund at a rate specified [by the
County Council] by law or Council resolution, but not less
than
the rate required under Section 5-1610 of the Natural Resources
o
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ExPEDITED BILL
No.
25-14
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
151
152
153
154
155
156
157
158
159
Article of the Matyland Code. [The requirement to contribute
money must be met within 90 days after development project
completion.] Any in lieu fee payment must
be
made before any
land disturbing activity, as defmed in Chapter 19, occurs on
section ofthe tract subject to the forest conservation plan.
~
*
(i)
*
*
*
Financial Security.
*
(4)
Amount required.
(A)
*
If
[the]
fmancial security is required under subparagraph
(l)(A) [of this subsection], the security instrument must be
in an amount equal to the estimated cost of afforestation,
reforestation, and maintenance applicable to the section of
the tract subject to the land disturbing activity.
If the
applicant sells an individual lot before providing the
required financial security, the Planning Director may
allow the new lot owner to provide
~
finanCial security that
applies to the requirements specific to the development of
that lot.
The instrument must include a provision for
adjusting the amount based on actual costs. The fmancial
security instrument must be submitted to the Planning
Director before any land disturbing activity occurs on the
tract. The Planning Director must notify the obligee of any
proposed adjustment and provide the opportunity for an
informal conference.
*
*
*
(})
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ExPEDITED BILL
No. 25-14
160
161
162
163
22A-20.
Hearings and appeals.
*
(b)
*
*
Forest conservation plans and variances approved by the Planning
Board.
A person aggrieved by the decision of the Planning Board on
164
165
166
167
168
169
170
171
172
173
174
the approval, denial, or modification of a forest conservation plan
(including a request for a variance) may [[appeal the final administrative
action on the development approval under the Maryland Rules of
Procedure and any other law applicable to the proceeding]] seek judicial
review of the decision in the Circuit. Court under the applicable
Maryland
Rules
of· Procedure
governing
judicial
review
of
administrative agency decisions. A party aggrieved by the decision of
the Circuit Court may appeal that decision to the Court of Special
Appeals.
(c)
Forest stand delineations!. exemptions from Article
lL.
and forest
conservation plans [approved] reviewed by the Planning Director.
175
176
177
178
179
180
181
182
183
184
185
186
(1)
Appeal to Planning Board.
After the Planning Director issues a
written decision on· a natural resource inventory/forest stand
delineation~
exemption from Article
II,
or forest conservation
plan, an applicant may appeal the decision to the Planning Board
within 30 days.
(2)
Hearing; decision.
The Planning Board must hold a de novo
hearing on the appeal. The Board must adopt a written resolution
explaining its decision.
For purposes of judicial review, the
decision ofthe Planning Board is the final agency action.
(3)
Appeal.
After receiving the Planning Board's decision, an
applicant may [[appeal the decision within 30 days under the
Maryland Rules of Procedure]] seek judicial review of the
e
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ExPEDITED BILL
No.
25-14
187
188
189
190
191
192
193
194
195
196
197
198
199
200
decision in the Circuit Court under the applicable Maryland Rules
of Procedure governing judicial review of administrative agency
decisions. A party aggrieved by the decision of the Circuit Court
may appeal that decision to the Court of Special Appeals.
(d)
Administrative enforcement process.
*
(4)
*
*
Appeal.
After receiving the Planning Board's decision, an
aggrieved person may [[appeal the Board's action within 30 days
under the Maryland Rules of Procedure]] seek judicial review of
the decision in the Circuit Court under the applicable Maryland
Rules of Procedure governing judicial review of administrative
agency decisions.
A party aggrieved by the decision of the
Circuit Court may appeal that decision to the Court of Special
ARReals.
201
202
203
*
Sec. 2.
*
*
Expedited Effective Date.
The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date when it becomes
law.
204
205
o
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LEGISLATIVE REQUEST REPORT
Expedited Bill 25-14
Forest Conservation
-
Amendments
DESCRIPTION:
Expedited Bill 25-14 would amend Chapter
22A
for consistency with
State law by exempting the following from certain requirements of
the Forest Conservation Law: stream restoration projects and
maintenance or retrofitting of stormwater management structures.
Current County law is out of date and does not reflect State law
changes made in 2013.
To make County law consistent with State law.
Maryland-National Capital Park and Planning Commission
To
be
requested.
To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905
Amanda Mihill, Legislative Attorney, 240-777-7815
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIEN CE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
A violation of Chapter
22A
is a Class A violation.
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W\B
ILLS\1425 Forest Conservation Law\LRR.Doc
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MONTGOMERY COUNTY PLANNING
BOARD
THE MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION
OFFICE
OF
THE
CHAIR
February 21, 2014
The Honorable Craig Rice
President, Montgomery County Council
Stella B. Werner Council Office Building
100 Maryland Avenue
Rockville, Maryland 208S0
Dear~
~~
Cj:tl
:.r.
s~g
~-«
nO"",
CI-ll
\
r-
On
February 20, 2014, the Montgomery County Planning Board recommended
s=i1
to
transmit an Expedited Bill to the County Council to make the County's Forest Conservation
Law consistent with House Bill 706, which became effective Statewide on October 1,2013,
and to make other clarifying changes to the law. The proposed revision:
~
~
sa
~
-
VI
1. Adds four new definitions to Section 22A-3. The defInitions are needed to clarify the various
sections ofthe law. The definitions "developed area," "developed property" and
"development application" are necessary to identify specific trigger points later in the law.
The definition "stream restoration project" is from House Bill 706.
2. Clarifies Section 22A-4 by indicating that the forest conservation law applies to any person
who is required to obtain approval of a new development application, or an amendment to a
development application.
3. Changes Section 22A-S to codify a staff practice and add two exemptions from submitting a
forest conservation pIan. The proposed change to 22A-S(t) clarifies that to qualify for an
exemption, no more than SOOO square feet of forest can be removed cumulatively, the
modification cannot substantially increase the developed area,
and
the existing use must be
retained. Proposed exemptions 22A-5 (u) and (v) are
in
response to House Bill 706.
4. Will prevent unsuspecting lot purchasers from needing to obtain
final
forest conservation plan
approval when small landowners who subdivide tracts of land have not procured approval of a
final forest conservation plan prior to selling recording lots. In these cases the first new lot
buyer currently has the additional responsibility to submit and fmalize the
final
forest
conservation plan before they can obtain a sediment control permit. The proposed changes to
Section 22A-11(b)(2)(A) will
require
all final forest conservation plans be approved prior to
Planning Board approval ofthe record plat. Thus, the party subdividing
the
land will have
responsibility to gain approval for the fmal forest conservation plan before selling any lots.
5. Identifies that the Planning
Board
must approve a preliminary forest conservation plan with
the first applicable development application, and a fmal forest conservation plan with the last
applicable development application. Previously
the
law did not have a timing mechanism as
8787 GeotgiaAve:nue,
Silvet
Spring, Maryland 20910 Phone: 301.495.4605 Fax: 301.495.1320
www.montgomeryplanningboatd.org E-Mail: mcp-cbair@mncppc-mc.org
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The Honorable Craig Rice
February
21,2014
Page Two
to when the forest conservation plans were to be approved by the Planning Board. These
proposed changes are in Section 22A-ll(b)(2)(C).
6. Removes the requirement that forest conservation fmancial surety be posted prior to the
issuance ofa sediment control permit. The Montgomery County Department of Permitting
Services currently issues sediment control permits without ensuring the financial security is
posted, and it is staff practice is to require financial surety prior to any land disturbance
occurring on the subject site, not prior to a sediment control
permit.
The proposed change to
Section 22A-ll(d)(3) will codify the practice.
7. Clarifies that when a developer makes a payment in lieu ofplanting forest on site, the in-lieu
fee payment is required prior to any land disturbing activity occurring on a section of the tract
subject to a forest conservation plan. The current law allows applicants to make the in-lieu
fee payment within 90 days after project development completion.
In
practice, however,
applicants are providing the payment prior to land disturbance. Therefore the proposed
changes to Section 22A-12(g)(1) codify the development community's practice of paying
before land disturbance.
8. Allows individual lot owners to post a financial surety equivalent to their portion ofthe
planting requirements associated with the forest conservation plan, instead of being
responsible for the financial surety for the entire subdivision. The proposed changes to
Section 22A-12(h)(4)(A) allow for property owners to pay a pro rata share of the overall
fmancial surety.
9. Clarifies Section 22A-20 to identify that not just plans approved by the Planning Director but
all plans reviewed by Planning Director can be appealed to the Planning Board. This will
allow plans denied by the Planning Director to be appealed to the Planning Board.
Members ofthe Planning Board and Staffofthe Maryland-National Capital Park
&
Planning Commission area available to assist the Council in its review of the proposed
legislation. Enclosed is a copy ofthe staff report dated January 29,2014 and language
changes agreed to by the Planning Board during its discussion ofthe amendments on
February 20. 2014.
i
Fran~ise
M.
Carrier
Chair'
cc: Mike Faden
Enclosures
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MARTIN O'MALLEY, Governor
Ch.384
Chapter 384
(House Bill 706)
AN ACT concerning
Natural Resources - Forest Preservation Act of 2013
FOR the purpose of requiring the Department of Natural Resources to provide a
statewide forest resource inventory to local jurisdictions at certain intervals;
declaring certain policies of the State with respect
to
forests; altering the
defined term "construction activity" as it applies to reforestation requirements
to
include associated mitigation requirements; expanding the purpose and
authorized uses of the Reforestation Fund to include financing tree planting on
private land and financing the prevention of and response to forest health
emergencies; extending the time frame within which the Department must
accomplish certain reforestation requirements and for which certain funds are
required to remain in the Reforestation Fund; repealing the requirements that
the Department determine the meaning of "no net loss of forest", develop related
policies, and submit a certain report describing certain findings; defining the
term "no net loss of forest"; altering the. defined term "timber stand
improvement" to include certain activities that improve forest health; altering
the range of acres of land that a person is required to own or lease to be eligible
for certification for a certain income tax subtraction or modification; altering
certain prohibitions against setting certain fires; altering a certain minimum
penalty for violating a certain prohibition against setting certain fires;
exempting certain stream restoration projects and certain maintenance or
retrofitting of a stormwater management structure from the requirements of
the Forest Conservation Act; authorizing a local jurisdiction to waive the
requirements of the Forest Conservation Act for certain previously developed
areas; authorizing the Department to take certain action against a local
jurisdiction for failure
to
comply with the Forest Conservation Act; requiring
the Department of Planning, in consultation with the Department and the
Sustainable Forestry Council,
to
provide certain technical assistance to local
jurisdictions by a certain date; clarifying the intent of this Act with respect to
the authority of the Department of Agriculture to establish forest policy;
declaring a certain intent of the General Assembly; requiring the Department to
convene a certain stakeholder group after a certain time to perform a certain
review and make certain recommendations: making certain stylistic changes;
defining certain terms; and generally relating to forest conservation and
sustainability.
BY renumbering
Article - Natural Resources
Section 5-101(i),
(j),
(k),
(1),
and (m), respectively
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Ch.384
2013 LAWS OF MARYLAND
to be Section 5-1010),
(k), (1),
(m), and (n), respectively
Annotated Code of Maryland
(2012 Replacement Volume)
BY
renumbering
Article - Natural Resources
Section 5-1601(ff), (gg), (hh), (ii), (jj),
(kk), (11),
(mm), and (nn), respectively
to be Section 5-1601(gg), (hh), (ii) , (jj),
(kk),
(mm), (nn) , (00), and (pp),
respectively
Annotated Code of Maryland
(2012 Replacement Volume)
BY repealing and reenacting, without amendments,
Article - Land Use
Section 1-101(0)
Annotated Code of Maryland
(2012 Volume)
BY
repealing and reenacting, with amendments,
Article - Land Use
Section 1-408 and 3-104
Annotated Code of Maryland
(2012 Volume)
BY
repealing and reenacting, without amendments,
Article - Natural Resources
Section 5-101(e), 5-103(a)(1) and (3), 5-1601(a), and 5-1602(a)
Annotated Code of Maryland
(2012 Replacement Volume)
BY
adding to
Article - Natural Resources
Section 5-101(i), 5-103(j), 5-1601(ff) and
(11),
and 5-1602(b)(12) and (13)
Annotated Code of Maryland
(2012 Replacement Volume)
BY
repealing and reenacting, with amendments,
Article - Natural Resources
Section 5-102, 5-103(a)(2) and (e), 5-219, 5-704, 5-1602(b)(10) and (11), and
5-1603(c)(3)(ii) and (e)
Annotated Code of Maryland
(2012 Replacement Volume)
BY
repealing
Article - Natural Resources
Section 5-104
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MARTIN O'MALLEY, Governor
Annotated Code of Maryland
(2012 Replacement Volume)
BY repealing and reenacting, without amendments,
Article - Tax - General
Section 10-208(a)
Annotated Code of Maryland
(2010 Replacement Volume and 2012 Supplement)
BY repealing and reenacting, with amendments,
Article - Tax - General
Section 10-208(i)
Annotated Code of Maryland
(2010 Replacement Volume and 2012 Supplement)
Ch.384
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF
MARYLAND, That Section(s) 5-101(i),
(j),
(k),
(1),
and (m), respectively, of
Article - Natural Resources of the Annotated Code of Maryland be renumbered to be
Section(s) 5-101(j),
(k),
(1),
(m), and (n), respectively.
SECTION 2. AND BE IT FURTHER ENACTED, That Section(s) 5-1601(ff),
(gg), (hh),
(ii),
(jj), (kk),
(11),
(mm), and (nn), respectively, of Article - Natural Resources
of the Annotated Code of Maryland be renumbered to be Section(s) 5-1601(gg), (hh),
(ii), (jj), (kk), (mm), (nn),
(00),
and (Pp), respectively.
SECTION 3. AND BE IT FURTHER ENACTED, That the Laws of Maryland
read as follows:
Article -
Land
Use
1-101.
(0)
"Sensitive area" includes:
(1)
(2)
(3)
(4)
a stream or wetland, and its buffers;
a 100-year flood plain;
a habitat of a threatened or endangered species;
a steep slope;
(5)
agricultural or forest land intended for resource protection or
conservation; and
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Ch.384
(6)
2013 LAWS OF MARYLAND
any other area in need of special protection, as determined in a
plan.
1-408.
(a)
A sensitive areas element shall include the goals, objectives, principles,
policies, and standards designed to protect sensitive areas from the adverse effects of
development.
(b)
BEGINNING OCTOBER 1, 2013, THE DEPARTMENT OF NATURAL
RESOURCES SHALL PROVIDE A STATEWIDE FOREST RESOURCE INVENTORY TO
LOCAL JURISDICTIONS AT LEAST EVERY
5
YEARS, TO BE AVAILABLE FOR THE
6
YEAB LOCAL COMPREHENSIVE PLAN REVIEW BY LOCAL JURISDICTIONS
REQUIRED UNDER
§§
1-416(A) AND 3-301(A) OF THIS ARTICLE.
(C)
Before the plan is adopted, the Department of the Environment and the
Department of Natural Resources shall review the sensitive areas element to
determine whether the proposed plan is consistent with the programs and goals of the
departments.
3-104.
(a)
A sensitive areas element shall include the goals, objectives, principles,
policies, and standards designed to protect sensitive areas from the adverse effects of
development.
(b)
BEGINNING OCTOBER 1, 2013, THE DEPARTMENT OF NATURAL
RESOURCES SHALL PROVIDE A STATEWIDE FOREST RESOURCE INVENTORY TO
LOCAL JURISDICTIONS AT LEAST EVERY
5
YEARS, TO BE AVAILABLE FOR THE
6
YEAR
LOCAL COMPREHENSIVE PLAN REVIEW BY LOCAL JURISDICTIONS
REQUIRED UNDER
§§
1-416(A) AND 3-301(A) OF THIS ARTICLE.
(C)
Before the plan is adopted, the Department of the Environment and the
Department of Natural Resources shall review the sensitive areas element
to
determine whether the proposed plan is consistent with the programs and goals of the
departments.
Article - Natural Resources
5-101.
(e)
(1)
"Forest land" means a biological community dominated by trees
and other woody plants that are capable of producing timber or other wood products
with a stocking of 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.
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MARTIN O'MALLEY, Governor
Ch.384
(2)
"Forest land" includes forested areas that have been cut but not
converted to other land uses.
(I)
"No
NET LOSS OF FOREST" MEANS
40%
OF ALL LAND IN MARYLAND
IS COVERED BY TREE CANOPY.
5-102.
(a)
The General Assembly finds that:
(1)
Forests, streams, valleys, wetlands, parks, and scenic, historic, and
recreation areas of the State are basic assets and their proper use, development, and
preservation are necessary to protect and promote the health, safety, economy, and
general welfare of the people of the State;
(2)
Enhancing the extent and condition of tree and forest cover in the
Chesapeake Bay watershed is critical to the success in restoring the Chesapeake Bay
because forests are the most beneficial use of protecting water quality due to their
ability to capture, filter, and retain water, as well as absorb pollution from the air;
(3)
Forests and trees are key indicators of climate change and can
mitigate greenhouse gas emissions by carbon sequestration;
(4)
Forests provide habitat for hundreds of wildlife species, including
habitat needed for rare, threatened, and endangered species;
(5)
natural threats;
Forests are susceptible to environmental degradation caused by
(6)
Forests, like other open space areas, are under intense
development-related pressures for residential, commercial, and industrial conversion
due to the demands of a growing population;
(7)
Trees and forests in urban areas provide multiple benefits,
including:
(i)
Mitigation of urban stormwater runoff into the Chesapeake
Bay;
(ii)
(iii)
(iv)
matter;
Sequestration of carbon;
Avoidance of energy-related emissions;
Mitigation of air pollutants, such as ozone and particulate
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Ch.384
2013 LAWS OF MARYLAND
(v)
(vi)
Reduction of the urban heat island effect; and
Contributions to community livability;
(8)
Forest land owners, including local government officials
responsible for overseeing the management of publicly owned forest lands, could
benefit from research-based education outreach programs in order to help facilitate an
understanding of sustainable forestry management that is consistent with forest
stewardship principles;
(9)
Forests are a renewable resource that help the State meet its
renewable energy goals that are consistent with the State's:
(i)
(ii)
(iii)
(iv)
Green power goal for State facilities;
Renewable Energy Portfolio Standard;
Healthy Air Act; and
Maryland Clean Energy Incentive Act of 2006; and
(10) This title sets forth Maryland's vision for sustaining Maryland's
coveted forest lands into the 21st century that is consistent with the Chesapeake 2000
Agreement and the 2007 Forestry Conservation Initiative.
It
is the policy of the State to encourage the retention and sustainable
management of [the State's privately owned] forest lands by:
(b)
(1)
ACHIEVING NO NET LOSS OF FOREST B¥
!UJ29;
[(1)] (2)
Mording due consideration
to
the protection and retention
of forests in the State through existing land conservation programs where they have
the highest value in terms of promoting the State's compliance with its clean water
goals under the Chesapeake 2000 Agreement and the 2007 Forest Conservation
Initiative;
Enhancing the retention of privately owned forest lands
[(2)] (3)
through research-based educational outreach efforts to landowners by the State's
forest conservancy district boards;
[(3)] (4)
Developing financial incentives to encourage landowners to
retain and manage their forests sustainably and in a manner that is consistent with a
forest stewardship plan;
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MARTIN O'MALLEY, Governor
Ch.384
[(4)] (5)
Promoting renewable energy policies and markets with
increased emphasis on the use of in-State produced woody biomass;
ENSURING DUAL CERTIFICATION OF THE STATE'S FORESTS
BY THE FOREST STEWARDSIDP COUNCIL AND THE SUSTAINABLE FORESTRY
INITIATIVE;
(6)
[(5)]
(7)
(i)
Recognizing the importance of:
A viable forest products industry to the economies of rural
Maryland;
(ii)
(iii)
Continued development of fiber products; and
Maryland's green infrastructure; and
[(6)]
(8)
Developing and enhancing programs with a sustainable
forestry component, including a forest mitigation banking system, a carbon credit or
carbon sequestration program, a clean water credit trading system, an environmental
services credit trading program, and a renewable energy credit trading system.
5-103.
(a)
(1)
In this section the following words have the meanings indicated.
(2)
"Construction activity" means [construction of a highway by a
constructing agency]
WORK BY A CONSTRUCTING AGENCY RELATED TO:
(I)
OR
(II) OFF-SITE ENVIRONMENTAL MITIGATION RELATED TO
HIGHWAY CONSTR.UCTION.
CONSTRUCTION OF OR IMPROVEMENTS TO A HIGHWAY;
(3)
"Constructing agency" means:
(i)
A unit of State or local government; or
(ii)
Any other person who uses State funding and performs any
construction activity with the State funding.
(e)
(1)
In this subsection, "Fund" means the Reforestation Fund.
There is a Reforestation Fund in the Department.
(2)
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Ch.384
(3)
2013 LAWS OF MARYLAND
The purpose of the Fund is to [fmance]:
(I)
FINANCE
the planting of trees on:
[(i)]
1.
[State or other publicly owned lands] LAND located in
the county and watershed in which construction projects giving rise to Fund
contributions are located; and
[(ii)] 2.
Private property on which trees were destroyed by a
treatment to destroy plant pests that was applied by the Department of Agriculture;
AND
(II) FINANCE THE PREVENTION OF AND RESPONSE TO
FOREST HEALTH EMERGENCIES.
(4)
The Department shall administer the Fund.
(5)
(i)
The Fund is a special, nonlapsing fund that is not subject to
§
7-302 of the State Finance and Procurement Article.
(ii)
The Treasurer shall hold the Fund separately and the
Comptroller shall account for the Fund.
(6)
The Fund consists of any money received from contributions by a
constructing agency under subsection (d) of this section.
(7)
(i)
Subject to subparagraph (ii) of this paragraph, the Fund
may be used only to:
Plant trees on [State or other publicly owned lands]
LAND
located
in
the county and watershed in which construction projects giving rise to
Fund contributions are located;
1.
2.
If
reforestation cannot be reasonably accomplished in
the county and watershed in which the construction activity is located:
Plant trees on State or other publicly owned lands
located in the county or in the watershed in the State in which the construction
activity is located; or
A.
Purchase credits in, establish, or maintain a forest
mitigation bank in the county or watershed in which the construction activity is
located in accordance with Department regulations; [or]
B.
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MARTIN O'MALLEY, Governor
Ch.384
3.
Replace trees, except nursery stock that has not been
replanted, that were destroyed by the application of a treatment applied
to
destroy
plant pests under a quarantine imposed by the Secretary of Agriculture, whether or
not the quarantine is in effect in the county or watershed where the construction
activity occurred;
OR
FINANCE THE PREVENTION OF AND RESPONSE TO
FOREST HEALTH EMERGENCIES BY:
MAINTAINING THE HEALTH AND VITALITY OF
FOREST LAND AND URBAN TREE CANOPY; AND
PREVENTING OR CONTROLLING SIGNIFICANT
FOREST LAND AND URBAN TREE CANOPY DEGRADATION CAUSED BY ACTS OF
NATURE.
4.
A.
B.
(ii)
1.
Except as provided in subsubparagraph 2 of this
subparagraph, moneys in the Fund may be used for administrative costs calculated in
accordance with
§
1-103(b)(2) of this article.
2.
The Fund may not be used to finance administrative
activities associated with a mitigation bank.
3.
Any credits created by the Fund may not be sold to
compensate for additional forest impacts.
The Department shall accomplish the reforestation for
(iii)
1.
which money is deposited in the Fund within [1 year or two] 2
YEARS OR THREE
growing seasons after project completion, as appropriate.
Money deposited in the Fund under subsection (d) of
this section shall remain in the Fund for a period of
[1
year or two] 2
YEARS OR
THREE
growing seasons, and at the end of that time period, any portion that is not
used to meet the reforestation requirements shall be returned to the constructing
agency.
2.
(8)
(i)
The Treasurer shall invest the money of the Fund in the
same manner as other State money may be invested.
(ii)
Any investment earnings of the Fund shall be credited to the
General Fund of the State.
(9)
the State budget.
Expenditures from the Fund may be made only in accordance with
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Ch.384
2013 LAWS OF MARYLAND
[(10)
The Department may adopt regulations to implement this
subsection.]
(J)
SECTION.
THE DEPARTMENT MAY ADOPT REGULATIONS TO IMPLEMENT THIS
[5-104.
(a)
to:
The Department shall cooperate with forestry-related stakeholder groups
(1)
Determine the meaning of no net loss of forest for the purposes of
any State policy; and
(2)
in the State.
On or before December 1,
2011,
the Department, in consultation with the
forestry-related stakeholder groups, shall report to the Senate Education, Health, and
Environmental Affairs Committee and the House Environmental Matters Committee,
in accordance with
§
2-1246 of the State Government Article, on proposals for the
development of statutory, budgetary, and regulatory policies to achieve no net loss of
forest in the State.]
(b)
Develop proposals for the creation of a policy of no net loss of forest
5-219.
(a)
(1)
In this section the following words have the meanings indicated.
"Reforestation" means the stocking or restocking of an area
"Reforestation" includes:
1.
(2)
(i)
with forest tree species.
(ii)
Site preparation by mechanical operation, application
of herbicides, or prescribed burning;
2.
3.
4.
5.
(iii)
ornamental trees.
-10
Tree planting;
Release of seedlings from competing vegetation;
Animal damage control of seedlings; and
Other activities that the Secretary requires.
''Reforestation'' does not include the growing of Christmas or
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MARTIN O'MALLEY, Governor
Ch.384
(3)
(i)
''Timber stand improvement" means any [precommercial]
cultural operation made to improve the composition, constitution, condition, [and]
OR
increment of a timber stand
THAT DOES NOT RESULT IN IMMEDIATELY SALABLE
FOREST PRODUCTS.
(ii)
''Timber stand improvement" includes [tree]:
1.
TREE
removal, girdling, poisoning, and prumng
activities;
AND
[that:
1.
Are not done only to help regeneration; and
Do not result in immediately salable forest products.]
ACTIVITIES THAT IMPROVE FOREST HEALTH,
2.
2.
INCLUDING:
A.
EFFORTS TO CONTROL INVASIVE SPECIES;
CREATION
OR
MAINTENANCE
OF
FORESTED
B.
RIPARIAN BUFFERS;
C.
DEVICES;
INSTALLATION OF WATER QUALITY PROTECTION
D.
REDUCTION, REMOVAL, OR OTHER MANAGEMENT
OF THE RESIDUAL MATERIALS GENERATED DURING TIMBER HARVEST;
E.
RESTORATION OF FOREST HABITAT AFFECTED BY
LOGGING ACCESS ROADS AND TRAILS; AND
OTHER HABITAT IMPROVEMENT
MANAGEMENT PRACTICES AS DETERMINED BY THE DEPARTMENT.
(b)
F.
OR
BEST
A person who owns or leases
[10
to
500]
3
TO
1,000
acres of land may
apply for reforestation or timber stand improvement certification under this section
if
the land is:
(1)
year; and
(2)
Available for the application of scientific forest management
practices for the primary purpose of growing and harvesting forest tree species.
Capable of growing more than 20 cubic feet of wood per acre per
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Ch.384
2013 LAWS
OF
MARYLAND
(c)
The Department shall issue an initial certification of reforestation or
timber stand improvement to an applicant who owns or leases
[10
to 500] 3
TO
1,000
acres of land that is used as commercial forest land or that is being restored and is
capable of growing a commercial forest, if there is:
(1)
A successful planting of the required mlmmum number of
seedlings with acceptable species; or
(2)
Timber stand improvement activities in accordance with a forest
management plan developed by a licensed forester.
(d)
(I)
Within 2 years after the date of initial certification, the
Department shall issue a final certification of reforestation or timber stand
improvement to an applicant who received an initial certification
if:
(i)
Seedlings are living without other vegetation grOWIng
around or over the seedling; or
(ii)
Successful timber stand improvements have been made in
accordance with regulations of the Secretary.
(2)
If
the reforestation or timber stand improvement activities do not
meet the requirements for final certification when the application is made, the
applicant may replant or conduct additional timber stand improvement activities.
(e)
If
an application for final certification is not filed within 2 years after the
date of initial certification, the applicant shall submit a plan to continue the
reforestation or timber stand improvement project to the Department.
(f)
The Department shall decertify land if:
(I)
Reforestation or timber stand improvement activity on the land is
discontinued before issuance of a final certificate;
(2)
A final certificate application or a plan of continuation is not filed
within 2 years after the date on which the initial certificate is issued; or
(3)
The land does not continue to be used as commercial forest land for
15 years after final certification is issued.
(g)
The Secretary shall:
(I)
Adopt regulations to carry out this section;
(2)
Provide to a certified person notice of initial and final certification
that the person may file with the Comptroller as evidence of the eligibility of the
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MARTIN O'MALLEY, Governor
Ch.384
person for the income tax subtraction modification for reforestation and timberland
expense allowed under §§
10-208
and
10-308
of the Tax General Article; and
(3)
Send a copy of a decertification notice to the Comptroller for
purposes of the income tax addition modification for reforestation and timberland
expense required under §§
10-205
and
10-306
of the Tax - General Article.
5-704.
(a)
Any individual or corporation that willfully, maliciously, or with intent,
sets on fire, or causes to be set on fire, any woods, brush, grass, grain, or stubble[, on
land not his own,] is guilty of a misdemeanor and upon conviction is subject to a fine
not less than
[$25]
$250 nor exceeding
$2,000,
or imprisonment for not less than
30
days nor exceeding five years, or both with costs imposed in the discretion of the court.
An individual or corporation may not carelessly or negligently set on fire,
or cause to be set on fire any woods, brush, grass, grain, or stubble [resulting in
damage to the property of another]. Setting a fire contrary to the provisions of this
subsectionl, or allowing it
to
escape to the injury of adjoining lands,] is prima facie
proof of carelessness or neglect within the meaning of this subsection. The landowner
from whose land the fire originated also is liable in a civil action for damages for injury
resulting from the fire, and for the cost of fighting and extinguishing the fire, unless
[he]
THE LANDOWNER
can prove to the satisfaction of the court before which the case
is tried that the injury complained of was suffered without any negligence on the part
of the owner or [his]
THE OWNER'S
agents.
(b)
(c)
Any person who discovers a forest or brush fire not under the control of
some person shall extinguish it or report it to the local fire warden.
(d)
The provisions of this section do not contravene other provisions of law
relating-to the liability for fires of railroad companies.
5-1601.
(a)
In this subtitle the following words have the meanings indicated.
(FF) "PRIORITY FUNDING AREA" MEANS AN AREA DESIGNATED AS A
PRIORITY FUNDING AREA UNDER
§
5-7B-02
OF THE STATE FINANCE AND
PROCUREMENT ARTICLE.
(LL) "STREAM RESTORATION PROJECT" MEANS AN ACTIVITY THAT:
(1)
Is
DESIGNED TO STABILIZE STREAM BANKS OR ENHANCE
STREAM FUNCTION OR HABITAT LOCATED WITHIN AN EXISTING STREAM,
WATERWAY, OR FLOODPLAIN;
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Ch.384
2013 LAWS OF MARYLAND
AVOIDS AND MINIMIZES IMPACTS TO FORESTS AND PROVIDES
FOR REPLANTING ON-SITE AN EQUIVALENT NUMBER OF TREES TO THE NUMBER
REMOVED BY THE PROJECT;
(2)
(3)
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
(4)
Is
NOT PERFORMED TO SATISFY STORMWATER MANAGEMENT,
REQUIREMENT
WETLANDS MITIGATION, OR ANY OTHER REGULATORY
ASSOCIATED WITH PROPOSED DEVELOPMENT ACTIVITY.
5-1602.
(a)
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.
(b)
The provisions of this subtitle do not apply to:
(10)
A county that has and maintains 200,000 acres or more of its land
area in forest cover; [and]
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;
(11)
(12) 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
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.
(13)
MAINTENANCE
5-1603.
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MARTIN O'MALLEY, Governor
Ch.384
(c)
(3)
(ii)
A
local forest conservation program, when approved by the
Department, may [allow]:
1.
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
2.
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.
(e)
(1)
(i)
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.
(ii)
In its biennial review, the Department shall evaluate the
level of compliance with the performance standards and required forest conservation.
(I)
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[, after which].
(2)
(II) 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:
1.
[assume]
AsSUME
review and approval of all forest
conservation plans within the jurisdiction of the local authority until the deficiencies
are corrected;
REQlJIBE 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.
2.
3.
Article -
Tax -
General
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Ch.384
10-208.
2013 LAWS OF MARYLAND
(a)
In addition to the modification under
§
10-207 of this subtitle, the
amounts under this section are subtracted from the federal adjusted gross income of a
resident to determine Maryland adjusted gross income.
(i)
(1)
The subtraction under subsection (a) of this section includes twice
the amount of expenses for reforestation or timber stand improvement activity on [10
to 100]
3
TO
1,000
acres of commercial forest land, exclusive of federal funds.
(2)
Of the amount under paragraph (1) of this subsection:
(i)
50% may be claimed in the taxable year in which the
Department of Natural Resources issues an initial certificate of reforestation or timber
stand improvement; and
50% may be claimed in the taxable year in which the
Department of Natural Resources issues a final certificate of reforestation or timber
stand improvement.
(ii)
SECTION 4. BE IT FURTHER ENACTED, That by January 1, 2015, the
Department of Planning, in consultation with the Department of Natural
&888\11'@88
~
Resources. the Sustainable Forestry Council, and other interested parties. shall
provide local jurisdictions with guidelines, recommendations, and technical assistance
on policies and standards to protect forest land and urban tree canopy from
;j;M
adverse effects
8f
Ei8Tl8~8~m:8Ht.
SECTION 5. AND BE IT FURTHER ENACTED, That nothing in this Act is
intended to supplement or limit the authority of the Department of Agriculture to
establish policies relating to forest land under any program regulated at the
Department of Agriculture.
SECTION 6. AND BE IT FURTHER ENACTED, That it is the intent of the
General Assembly that:
the policy of achieving no net loss of forest shall be implemented in
a manner that does not incentivize the conversion of prime agricultural land with
Natural Resources Conservation Service type
I,
II. or III soil classification to
forestland, except for conservation best management practices meeting Natural
Resources Conservation Service standards and specifications; but
this Act may not be construed to prohibit an owner of agricultural
land from voluntarily agreeing to place conservation best management practices on
the property owner's agricultural land.
ill
lID
-16­
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MARTIN O'MALLEY, Governor
Ch.384
SECTION 7. AND BE IT FURTHER ENACTED, That, following the release of
the first statewide forest resource inventory after January 1, 2017. the Department of
Natural Resources shall convene a stakeholder group comprised of representatives
from local government, agriculture. forestry. development, conservation, and other
interested parties to review the inventory and make recommendations in accordance
with the policy goals established under
§
5-102(b) of the Natural Resources Article, as
enacted by Section 1 of this Act.
SECTION
&
8. AND BE IT FURTHER ENACTED, That this Act shall take
effect October 1, 2013.
Approved
by
the Governor,
May
2, 2013.
-17­
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ROCKVILLE, MARYlAND
MEMORANDUM
May 30, 2014
TO:
FROM:
Craig
Rice'1f::~:f~unty
Council
ce of Manageroen{ and Budget
Jennifer A.
H~~;r-n;ector~o
of Finance
Joseph F. Beach. Director, D
Bi1125-14E, Forest Conserva on - Amendments
SUBJECT:
Please find attached the fiscal
and
economic impact statements for the above-referenced
legislation.
JAH:fz
cc: Bonnie Kirkland, Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nurmi, Special Assistant to the
County
Executive
Patrick Lacefield, Director, Public Infonnation Office
Joseph F. Beach, Director, Department ofFinance
David Platt, Department ofFinance
Robert Hagedoom, Department ofFinance
Stan Edwards, Department of Environmental Protection
Alex Espinosa, Office ofManageroent and Budget
Matt Schaeffer, Office ofManagement and Budget
Naeem Mia, Office of Management and Budget
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Fiscal Impact Statement
Council Bill 25-14E, Forest Conservation - Amendments
1.
Legislative Summary.
Council Bill 25-14E would exempt certain stream restoration and stormwater
management facility retrofit projects from the requirements ofthe Forest Conservation
Law. This change will bring County Law into alignment with updated State Law on
Forest Conservation.
2.
An
estimate of changes
in
County revenues and expenditures regardless of whether
the revenues or expenditures are assumed in the recommended or approved budget.
Includes source of information, assumptions, and methodologies used.
Revenues are not expected
to
change as a result ofthe bill.
The Department ofEnvironmental Protection (DEP) must, under current law, perform a
survey oftrees and develop and submit a forest conservation plan in areas where
stormwater management projects are subject to the Forest Conservation Law.
DEP estimates that
up
to 23 stormwater management projects annually are subject
to
the
current Forest Conservation Law
at
a total average cost of $18,000 per project or a total
annual cost ofapproximately $414,000. The proposed bill would exempt these projects
from the requirements ofthe Forest Conservation Law, and these costs would no longer
be incurred as part ofthe stormwater management projects in the Capital Improvements
Program (CIP).
.
The Maryland-National Capital Park and Planning Commission (M-NCPPC) reports that
a staff time savings of 50 hours will be saved in the area of staff forest conservation plan
reviews as a result of Bill 25-14E at a total cost of approximately $2,800.
3.
Revenue and expenditure estimates covering at least the next
6
fiscal years.
The bill would reduce DEP stormwater Iilanagement CIPproject costs $414,000
annually, or $2,484,000 over the next 6
years.
M-NCPPC's staff time savings would be $2,800 annually, or $16,800 over the next 6
years.
4.
An
actuarial analysis through the entire amortization period for each bill that would
affect retiree pension or group insurance costs.
Not Applicable.
5. Later actions that may affect future revenue and expenditures
if
the biD authorizes
future spending.
Not Applicable.
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6.
An
estimate of the staff time needed to implement the bilL
No additional stafftime is needed to implement this Bill.
7.
An
explanation of how the addition of new staff responsibilities would affect other
duties.
No additional
staff
responsibilities will result from the implementation of
this
Bill.
8. An estimate of costs when an additional appropriation
is
needed.
No additional appropriation is needed to implement this Bill.
9. A description of any variable that could affect revenue and cost estimates.
Not Applicable.
10. Ranges of revenue or expenditures that are uncertain or difficult to project.
Not Applicable.
11.
If
a bill
is
likely to have no fiscal impact, why that
is
the case.
Not Applicable.
12. Other fiscal impacts or comments.
Not Applicable.
13. The following contributed to and concurred with this analysis:
Stan
Edwards, Department of Environmental Protection
Alex
Espinosa,
Office
of
Management and Budget
Matt
Schaeffer, Office
of
Management and Budget
Anjali Sood, Maryland-National Capital Park and Planning Commission
Date
Office of Management and Budget
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Economic Impact Statement
BiU 2S-14E, Forest Conservation - Amendments
Background:
This legislation would amend Chapter 22A for consistency with State law by exempting
the following from certain requirements ofthe Forest Conservation Law:
• stream restoration projects, and
• maintenance or retrofitting of stormwater management structures.
1. The sources of information, assumptions, and methodologies used.
The Department of Environmental Protection (DEP) provided information.
According to DEP,
Bill
25·14
(Bill)
would exempt several different types of activities
from the requirements ofthe County's Forest Conservation Law (FCL). The purpose
of this Bill is to conform to State law.
2. A description of any variable that could affect the economic impact estimates.
The variable that could affect the economic impact estimate is the business costs to
comply with the change to the FCL. While this Bill may reduce certain costs to the
private sector, the amount of such reduction would be minimal.
3.
The BiU's positive or negative effect, if any on employment, spending, saving,
investment, incomes, and property values in the County.
While the Bill may reduce business costs,
that
reduction, if any, would be minimal.
Therefore, this
Bill
would have no measurable impact on employment, spending,
saving, investment, and property values in the County.
4.
If
a BiU is likely to have no economic impact, why is that the case?
Please see paragraph
#3
5. The following contributed to or concurred with this analysis: David Platt and Rob
Hagedoorn, Finance; Stan Edwards, Department of Environmental Protection.
Page
I
of
I
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Testimony on Behalf of County Executive Isiah Leggett
Regarding Expedited
Bill 25-14,
Forest Conservation - Amendments
Stan Edwards, Chief
Division of Environmental Policy
&
Compliance
Department of Environmental Protection
June 10, 2014
Good afternoon. My name is Stan Edwards. I am the Chief of the Division of Environmental
Policy and Compliance in the Department of Environmental Protection. I am testifying on
behalf of County Executive Leggett in support of Expedited Bill 25-14, Forest Conservation ­
Amendments.
In 2013, the Maryland General Assembly passed House Bill 706, the Forest Preservation Act of
2013. This bill amended the Forest Conservation Act in several ways, including providing
exemptions for certain stream restoration and storrnwater management activities intended to
restore and protect environmental resources, including forests and trees. Expedited Bill 25-14
would make the County's Forest Conservation Law consistent with the State Forest Conservation
Act.
Entities like the Department of Environmental Protection (DEP), Montgomery Parks, and others
engage in stream restoration and the retrofit of storrnwater management facilities in order to
correct or prevent damage done by uncontrolled storrnwater. House Bill 706 recognized that
these activities serve to further the State's goals of protecting and enhancing forest resources by
limiting erosion of forest land and through the planting of new trees as part of the restoration
activity, activities which help return the land to its original condition to the greatest extent
possible. DEP estimates the bill could reduce the cost of our projects by over $400,000 annually,
freeing up resources that could be used for additional environmental restoration activities.
Additional savings would be realized by Montgomery Parks and other entities engaged in
watershed protection and restoration projects.
We urge you to support Expedited Bill 25-14 and would be happy to address any questions the
Council may have about the bill.
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Good afternoon. I am Mark Pfefferle with the Montgomery County Planning Department. I am here to
provide testimony on behalf of the Montgomery County Planning Board.
On October 1, 2013 Maryland House Bill 706 Bill became effective statewide. This Bill provides
municipalities a means to be exempt from submitting a forest conservation plan for stream restoration
projects and stormwater management retrofits. The proposed changes to the Montgomery County
Forest Conservation Law are to make our law consistent with Bill 706 and to make other clarifying
changes.
1. First the proposed changes add two new exemptions from submitting a forest conservation
plan. Proposed exemptions 22A-5 (u) and (v) are in response to House Bill 706.
2. The second propose change clarifies that the law applies to any person who is required to
obtain approval of a new development application, or an amendment to a development
application.
3. The proposed changes the modifications to existing development exemption by clarifying
that no more than 5000 square feet of forest can be removed cumulatively, that the
modification does not substantially increase the developed area, and the existing use is
retained.
4. The proposed changes will require all final forest conservation plans be approved prior to
Planning Board approval ofthe record plat. This will prevent unsuspecting individual lot
purchasers from needing to obtain final forest conservation plan approval when the person
that subdivided the land failed to obtain approval of a final forest conservation plan prior to
selling recorded lots. In these cases the first new lot buyer has the additional responsibility
to submit and finalize the final forest conservation plan before they can obtain a sediment
control permit. The Planning Board wants to eliminate this additional burden on individual
lot purchasers.
5. The proposed changes also allows individual property owners to post a financial surety
equivalent to their portion of the planting requirements associated with the forest
conservation plan instead of being responsible for the financial surety for the entire
subdivision.
6. Finally, Section 22A-20 limits appeals of plans reviewed by Planning Director to only those
that are approved. The proposed change will allow applicants of plans denied by the
Planning Director to be appealed to the Planning Board.
Thank you for the opportunity to provide comments.
@
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-
7n!q
.n,'~
r
9 PH
f:
39
June ]6,2014
MONTGOMERY COUNlY REVENUE AUTHOR1lY
AM
Sf$~
LL.
Cc.
-;51­
rnt=
Counci]member Craig Rice
President
Montgomery County Council
100 Maryland Avenue
Rockville, MD 20850
Re:
Bill 25-14 Forest Conservation - Amendments
Dear Councilmember Rice,
BiJl2S-14 concerns exemptions to forest conservation for stormwater management and
stream
restoration
projects: The Bill was also advertised as a general amendment to furest conservation law. The
Montgomery County Revenue Authority (MCRA) requeSts an amendment to Bi1I2S-l4 to provide an
exemption from forest conservation requirements for removing trees that are a hazard to aviation. This
requested exemption would parallel the exemption in Maryland law and the County tree canopy law.
The MCRA owns and operates the Montgomery County Airpark (Airpark). We work c]osely with the
Federal Aviation Administration (FAA) and receive federal funding to maintain the Airpark.
As
a
requirement to receiving this funding, the MCRA is subject to grant assurances. Section 20 ofthe grant
assurances requires MCRA to mitigate aviation hazards.
The FAA determined that the trees on the west side ofthe runway are a
hazard
to aviation (letter
attached). In the absence of this determination
by
the FAA. MCRA would not remove these trees.
Under the Maryland forest conservation law, if the FAA determines that trees are a hazard to aviation, the
removal ofthose trees does not trigger forest conservation requirements. The Maryland Department of
Natural Resources determined that any MCRA action to remove the trees identified as a hazard by the
FAA would be exempt from the State Forest Conservation Program (letter attached).
It
is illogical for the Montgomery County forest conservation law to require compliance with its forest
conservation law when the
tree
remova.l is the minimum required
by
the FAA. The Council
agreed
last
year that removing
trees
detennined to be a hazard
by
FAA did not require compliance with the
tree
canopy requirements
(Bill
35-12). The requested amendment would be consistent with that approved
legislation.
Thank you for your consideration in this matter.
I
M/IlJbM
1
~
.
Keith Miller
Chief Executive Officer
Amanda Mihill
Jeffrey Zyontz
(JJ
cc:
Attachments
<---< -<----- .._ - _ . _ - - - - - - - - - _ . _ - - - .._ - - - ._-- --­
101 Monroe Street, Suite 410 • Rockville, Maryland 20850 • 301/762-9080, FAX 3011309-0652
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FAA
Airports Division
Eastern
Region
Washington Airports District OffIce
23723
Air Freight Lane.
Suite
210
Dulles.
Virginia
20166.. ,
(703) 661-1354
G04'&
! ...
. "
AprH 7, 2010
Scanned
l;~~
"
'"
k····
' .•,
;j
(:'e..
.
~
Mr.
Keith Miller, Executive Director
Montgomery County Revenue Authority
101 Monroe
Street, Suite 410
Rockville, Maryland 20850
Reference:
Montgomery County Airpark
Part 77 ObstructionS
Dear Mr. Miller:
As.
part oCthe ongoing effort
to
bring the airport.in compliance
with
FAA design standards, the
MCRA prepared certain exhibits
which
depict obstructions
to
the FAR
Part
77 surface. Your
consultant has summarized those obstructions .on
a
drawing entitled Tree Obstructions
dated
April
2010.
FAA Object clearing criteria were developed to provide
for
safe and efficient operations
at
an
airport and require that certain areas on or near the airport be clear ofobjects or restricted to
objects
with
a certain
functi~
composition or height. One ofthe FAA standards which must be
clear under those requirements include the FAR
Part
77 surfaces. The FAA determined
that
penetrations
to
those surfaces are considered hazards
In
air navigation. Given
that the
penetrations are on property owned
by
the airport sponsor, the FAA
has
concluded
that
those
hazards must be removed.
If you have any questions pJease do
not
hesitate
to
contact our office.
Sincerely.
:~. ·H.;n~1 ~19ned
:
....'(1:(,,;:
By
"".,
PtisclUa
Thomas A. Priscilla, Jr.
Baltimore Metro Engineer
00:
Mr.
Solanki. MAA
/
Ms.
E..
~chenfelder,
Delta
(Richmond)
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~3-06-'97
14:17 fROM-
T-512 P002/002 F-262
MARYLAND
N.ta"\..RALREsOUACES
~a=
March 5, 2007
Mr. Keith Miller, Executive Director
Montgomery County Revenue Authority
101 Monroe
Street.
Suite 410
Rockville. MD 20850
RE:
Tree removal
at
Montgomery County
Airpark
FCAC01·10
DearMr.MHIer:
I
received
your
letter
dated
February
27,
,2001.
requesting
an exemption
trorri
the
requirements
of
the Maryland Forest Conservation Program for
the
proposed
tree
removal
at
Montgomery
County Alrpatlt In,
GaIthersburg,
Maryland.
Because
this
tree
removal is required
by
the Federal
A~n.~.h~
under
14 C.F.R. §77.25 (Part
77)
for safety reasons:
, ',:-.
""~
.;::;.t :;,.:.,
This
project
Is
no~
subject
to
the requirements of the State Forest Conservation
Program.
If
you
have any questions, please contact me at 410-83&456B.
ilL
Too
Ericson
Urban
&
COmmunity Forester
Jo
.~~llWJtll
Pt.AR
0 8
Z007
.•...
.•.
Meryfend Fcnst
SeIvic»
2
SouI1
Bond
SIreet
-----~.-
-,--
..
Bel
NI,
YO 21014
41N36-4588
www.dnr.maryland.gav
TrY
users
atI'IIia
MaryIend
Retey
@
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ExPEDITED BILL No. 25-14
28
29
30
Except as otherwise expressly provided in this Chapter, this Chapter applies
to:
(a)
a person required by law to obtain an
~nitia(
approval or
amet1~ent to~
..
development plan [approval], diagrammatic plan [approval], project
plan [approval], preliminary plan of subdivision [approval], or site plan
[approval];
'1'
ComrrIIn:
[SEll: Comment from the deleted.
Coun1y
A!lomey: The word
"initiaf'
should
be
word adds no moaning,
Th.
31
32
33
34
35
36
37
22A-S.
(t)
Exemptions.
a modification to an existing non-residentiatdeveloped property if:
(I) no more than [5000] 5,000 square feet of forest [will
be
cleared]
38
39
@
ever cleared in one event or cumulatively over multiple events
from the first exemptio!¥.....
mm ........ m
. . . . m . m . m .. m
......... m . m m . / /
40
41
42
Comment[m3]:
Comment from the County
Attorney:
The
Bill proposes to amend th. exemption
fordevetopmenl
ofl...
than
5,000 square
feet
nth.
forest "is ever cleared in
one
event or cwnulative]y
OWl'
multiple events from
the
first
exemption ...
~
The quotad phrase is
awkward
and unclear,
I
gather
the
intent
is
to prevont
the
""""'phon from being
invoked rno", than once for the same lot or
tract.
Th.
provision should be rewritten
to
clarifY that intent.
Based on our understanding
of
th.law, DEP believes
the
intent is
to
not allow more than 5K
sq
fl
to be
(2)
the modification does not [affect] result in the cutting, clearing, or
grading of any forest in a stream buffer or [forest] located on
property in a special protection area which must submit a water
quality plan; [and]
(3)
the modification does not require approval of a [new] preliminary
43
44
cleared
on a parcel, whether at one time or
45
46
47
48
plan ofsubdivision
plan[.]~
and
the modification does not increase the developed area
Qx
more
than 50% and the existing development
.i§
retained;
cumulatively,
after
an exemption
i.
grnnted. Once
this exemption is
grnnled,
it
would remain in
effecl
unlil the applicant clears 5.000
sq
ft
offorest over
one or
multiple
events,
Once
this occur.!, this
exemption
would
no longer apply, and the applicanl
would have
to
comply with Article
n
of1I1e
law
unless another exemption was applicable.
49
M
maintaining or retrofitting an existing stormwater management structure
if:
50
51
52
ill
the clearing of vegetation or removal and trimming oftrees
~
for
the maintenance or retrofitting of the structure and in the original
limits of disturbance for construction of the existing facility;
. ComrrIIn:
[m4]:
DEP propos•• this additional
language,
which
is consistent with the S_ FCA
and
adds clarification.
53
m
,,'
formatted:
font:
Arial, 8
pt.
Do
not
check
spelling
54
within any maintenance easement fur access to the
facility~
and ... _
or grammar
, DeIeta:I:
f:\lawlbillsI1425
forest
conservation
1aw\b11I1.docx
- 3
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tlles\coment.out!ook\aejnz6tj\bi II 25-14.. - (
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ExPEDITED BILL NO. 25-14
55
56
ill
ill
~
the tract
~
not included in
~
previously approved forest
conservation plan; and
57
58
59
60
stream restoration project for which the applicant for
~
sediment
control permit has:
ill
executed
~
binding maintenance agreement of
with the affected property owner or owners;
ru
least
.2.
years
61
62
agreed to replace every tree removed and plant the new
!before the end
0(ltheJ1!~1p'~t!t.J:g_S~t:I_~~~rJ!!!!1I._~~biJizati~t.J:;_
-(/..­
and
'
Comment
(mS]:
The State FSA is silent
on
when
this planting should occur.
As
drafted, this language
could b. interpreted
to
limit planting to only during
the
first
growing season after final stabilization. This
revision broadens
the
planting window while
maintaining
the
same completion date. It'. very
likely that entities engaged in a long-term stream
res!OllIIion
project will want to plant some areas
\ wbere conotruction
i.
""mplete before final
\ stabillzation of
the
entire
project
63
64
ill
22A-ll.
(b)
confirmed the tract
~
not included in
~
previously approved
forest conservation plan.
65
66
AppUcation, review, and approval procedures.
67
68
(2)
(A)
Project requiring development plan, project plan, preliminary plan of
subdivision, or site plan approval.
Forest conservation plan.
Application.
[Upon notification] After being notified that
the forest stand delineation is complete and correct, the
applicant must submit a forest conservation plan to the
Planning Director.
If the development proposal will
69
70
71
72
73
74
75
76
77
require more than one of the approvals subject to this
subsection. the applicant must submit a preliminary forest
conservation plan to the Planning Director in conjunction
with the first approval and a final forest conservation plan
in conjunction with the last approval. If only one approval
subject to this subsection is required, an applicant[. with
Formatted:
Font: Arial, 8
IX.
Do
not dleck
spelling or grammar
78
79
80
81
:' -t
,/
"
Deleted:
f:\law\bills\1425 forest conservation
:' / . lawIbill1.docx
-4
-E":~\;y!'.~':~!:-:P!'P3'I~.~~~~~~~~I!:rllH!¥J1!Xint:.n.Ji~iks\conlel1t.outlook\aejnz6tj\bill25-14.:
- (;
 PDF to HTML - Convert PDF files to HTML files
To: Councilmember Roger Berliner, Chair, Transportation, Infrastructure, Energy
andEnvironment (T&E); Councilmember Nancy Floreen and Councilmember Hans Riemer
cc: Bob Hoyt, Director, Department of Environmental Protection and Steve Shofar, Chief,
Watershed Management Division
From: Diane Cameron, Coordinator, Montgomery County Stormwater Partners and Audubon
Naturalist Society, and Amanda John, Policy Manager, Potomac Conservancy
Re: Montgomery County Expedited Bill 25-14: Forest Conservation Law - Amendments
Date: July 18, 2014
Summary of this Bill, our Response and Requests
The Audubon Naturalist Society and the Stormwater Partners Network appreciate this
opportunity to submit testimony on proposed amendments to the Forest Conservation Law
(FCL). This bill would conform Montgomery County law to State law regarding stormwater
facilities maintenance and retrofitting, and stream channel restoration projects. The bill would
also eliminate a current loophole for smaller forest removals from non-residential lots (section
22-A(5)(t), which we support).
Our position on this bill is that while we would normally oppose creating new exemption
categories from the Forest Conservation Law, we understand the background reasons for this
request. We are neutral on this
bill-
meaning we will refrain from oeposing it
-
ifthe replanting
and refOrestation project maintenance accountability requirements are added to the Expedited
Bill {requested below as our item
(2)
I
and ifMontgomery County. through DEP, commits in
writing to working with the Stormwater Partners on a Green Infrastructure Plan as part ofthe
County's MS-4 program moving fOrward. Through our conversations with DEP officials, we
understand that they are not opposed to the substance ofour asks and are willing to work with
us, so long as there is no further delay in this legislation.
The changes we request center on the need for greater accountability for effective reforestation
for the affected projects, and for Montgomery County to commit to a Green Infrastructure basis
for its stormwater pennit, including greater use oftree-based stormwater practices. We request
that the accountability we are seeking in lieu ofFCL requirements, be codified through specific
®
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2
additions to the County's Forest Conservation and Stormwater laws. [Specific FCL and SW law
revisions will be submitted.]
Information and commitments needed to gain Stormwater Partners'support for this legislation:
(I) Statistics on tree and reforestation outcomes and tree management in stormwater pond
maintenance and retrofits.
(2) Accountability for adequate replanting and long-term tree survivability. (details on p.5)
(3) Stormwater Facilities Maintenance and Retrofitting: New Tree Protocol needed.
(4) Statement of intent from DEP for its transition to making green infrastructure the
default approach for stormwater retrofits under Montgomery's stormwater permit.
Below we summarize: key items in Bill 25-14; the County's progress in recognizing the
stormwater benefits of green infrastructure trees and forests; and our set offour requests.
Summary of Key Provisions ofBill 25-14
Section 22A-5(u)
This would exempt from the FCL, tree removal operations associated with existing stormwater
facility maintenance and retrofitting, provided that the clearing is within the original limits of
disturbance for the facility's construction, and the tract is not part of a previously-approved
Forest Conservation Plan.
Section 22A-5(v)
This would exempt from the FCL, tree removal operations associated with stream restoration
projects, provided that the projects are subject to a binding five-year maintenance agreement
with affected property owners, and that the replanting is on at least a I: I ratio for every tree
removed, and the tract is not part of a previously-approved Forest Conservation Plan.
DEP staff have told members ofthe Stormwater Partners that the paperwork review requirements
of the Forest Conservation Law have hampered their work in maintaining and retrofitting
stormwater ponds, adding significant delays to their MS-4 implementation schedules
In a nutshell, the core purpose ofthis bill is to enable those who perform stormwater facilities
maintenance and retrofitting, and stream channel restoration projects, and who already do
replantings in order to mitigate tree losses caused by these projects, to avoid the paperwork and
other requirements ofthe Forest Conservation Law.
Relationship ofthis bill to Montgomery's Countywide stormwater (MS-4) permits
Conventional Pond Retrofits: the core ofMontgomery's MS-4 Program Thus Far.
Much ofthe impetus for this bill is from the County's efforts to comply with its Municipal
Separate Storm Sewer System ("M-S4") permits. These MS-4 permits are issued to Montgomery
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3
County under the federal Clean Water Act by the Maryland Department ofthe Environment.
DEP administers a very large MS-4 permit program
1,
and the Department of Parks has its own
MS-4 permit, requiring it to abate stormwater runoff from its properties. Both programs are
funded through the Water Quality Protection Charge, the County's stormwater utility fee.
The core requirement in the permit administered by DEP is to control the runoff from an
additional 20% of uncontrolled or poorly-controlled impervious surfaces, amounting to over
4000 impervious acres. As written by MDE, Montgomery's MS-4 permit allows any
combination of: conventional stormwater facility retrofits such as pond retrofits to enlarge
storage volumes; stream channel restoration; and Environmental Site Design (Green
Infrastructure, or GI) retrofits.
Beginning in late 2005, the Montgomery County Stormwater Partners Network asked MDE to
issue a more-stringent permit to Montgomery County, which would require aggressive retrofits
of existing impervious areas through use ofgreen infrastructure. In response, MDE and local
officials said that more time was needed to demonstrate how to implement and maintain the GI
practices, before they would agree to making these mandatory via the MS-4 permit, including via
a mandatory minimum percentage of impervious acres to be addressed with Green Infrastructure.
So GI has remained an open-ended option in the MS-4 permits. Meanwhile, the standard
practice for many years for stormwater pond maintenance and retrofits has involved tree
removal. Since the majority ofthe County's older impervious areas are served by stormwater
ponds and tanks, and this approach is less costly, DEP has so far opted to make conventional
pond retrofits the core of its MS-4 retrofit program
2 •
The role
0/
trees and other green practices is growing in the County's stormwater programs.
Green Infrastructure includes such techniques as: rain gardens; bioretention (engineered rain
gardens); green (vegetated) roofs; sheet flow to conservation areas; permeable pavements; and
other methods that infiltrate and otherwise reduce runoff at the source, usually using soil and
plants to slow down, spread out, and soak in runoff. In contrast to the other two restoration
techniques allowed by MDE
in
its MS-4 permits, only Green Infrastructure enables capture and
reduction of stormwater runoff at the source -- and the reduction of erosional flood-flows that
have been blowing out our streams and undermining roads, paths and other structures.
Based on their local experience and partnerships, and changes in stormwater policies regionally,
DEP staff recognize the beneficial role that trees can play when they are located in specific parts
of storm water ponds, and also in using tree plantings and reforestation directly as stormwater
management strategies.
1
Montgomery's main MS-4 was last issued by the Maryland Department of the Environment in February of 2010
and is up for renewal in February, 2015.
2
DEP Watershed Management Division Chief Steven Shofar stated
at
a meeting with the Stormwater Partners in
February, 2014 that the portion of impervious-acres served with GI retrofits would be under 10% by the end of the
current permit term (Feb.201S) both on a countywide basis and for the Anacostia portion of the County.
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Over the past eight years, we have appreciated the open, collaborative spirit of Montgomery
County and DEP Director Hoyt and Parks Director Bradford, and their storm water program
staffs in partnering with us to share information and collaborate on expanding the use ofGI. We
are impressed with the commitment ofleaders and staffofDEP, Parks and DPS to using Green
Infrastructure, often under challenging conditions. To give two examples: the RainScapes
Program that gives cash rebates to landowners who retrofit their own properties has grown
significantly in recent years, and DEP's collaboration with DOT has resulted in several
successful Green Streets retrofit projects countywide. Parks staff have removed imperviousness
by replacing unused parking areas with native plant rain gardens and Conservation Landscapes.
We know that DEP and Parks staff, and many staff ofDPS and other County agencies, share the
view that Green Infrastructure practices are preferable because they carry more total water
quality, environmental, social and economic benefits compared with other conventional
stormwater practices. Bill 25-14, which is about the nexus offorest and tree conservation and the
MS-4 permit programs, gives Montgomery County an opportunity to publicly firm up its
commitment to using Green Infrastructure - including tree-based stormwater practices -- as the
core component of its MS-4 retrofit compliance program.
Below we offer a few specific suggestions for the Council's leadership, in working with County
agencies, in promoting tree-based and other Green Infrastructure practices, and in providing
accountability for reforestation for all county projects.
Our Position: We need accountability for effective reforestation mitigation for all
stormwater and stream projects, and a clear commitment to use of Green Infrastructure as
the default basis for stormwater retrofits.
We have had the chance to review Planning Department staff information on this bill, and we
were briefed by DEP staff. The Storm water Partners have also benefited from separate annual
briefings on the stormwater permit programs by Parks Department and DEP staff. We appreciate
staff updating us on their work to implement Montgomery's stormwater permits, to maintain and
retrofit existing stormwater infrastructure and to restore degraded stream channels.
Accountability is needed for adequate replantings of removed trees and for long-term
survivability.
Our sense that county agencies have diligently replanted the trees they've removed for these
storm water and stream channel projects is crucial to our understanding of the basis for this bill.
However, this bill is written to exempt
all
operators of storm water maintenance and retrofitting
and stream restoration projects, not just County agencies. And, we cannot predict future
operators' voluntary accountability and "due diligence" practices. So we must take care that any
FCL exemptions not enable forest removal without accountability for adequate replantings and
their long-term maintenance. And the stormwater reduction functions of trees and forests need to
be given priority in Montgomery's stormwater management and watershed restoration programs.
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5
The introduction ofthis bill highlights the need to clarifY policy connections on trees and forests,
stonnwater management, and stream health, and to step up action to implement these initiatives.
Below we outline these needs.
(1) Statistics on tree and reforestation outcomes and tree management in stormwater
pond maintenance and retrofits.
o Statistics and facts about County tree and forest practices, and other Green
Infrastructure stonnwater practices, are needed.
• For instance, DEP staff note that their current practice is to replant to
greater than a 1: 1 ratio for their stream restoration projects. They have
improved tree protection with wire 'cages' to reduce deer predation. We
request that the Council ask DEP to provide statistics on their stonnwater
maintenance and stream restoration projects' tree removal and replanting
sites and numbers.
• Infonnation is also needed on current stonnwater facility maintenance and
retrofit practices for tree cutting, tree planting! replanting, and allowances
for keeping 'volunteer' trees (that have grown on their own).
(2) Accountability for adequate replanting and long-term tree survivability.
o The current language in section 5(v) about a binding 5-year maintenance
agreement apparently is more about operator access to a site, than it is about
ensuring long4enn survival of replanted trees. Replanting outcomes must be
binding, transparent and enforceable for all stream restoration projects.
o We request that the Council require DEP (and other agencies as needed) to
develop restrictive and accountable language to be codified in the County's Forest
Conservation Law, for the five-year reforestation maintenance agreement, that
includes requiring a legitimate contractor to inspect and maintain all stream
restoration projects for five years, and to enforceably require through such a
written agreement, standard levels oftree survivorship. (Which we believe is
around 65%.)
(3) Stormwater Facilities Maintenance and Retrofitting: New tree protocol needed.
o Montgomery County is redefining the role oftrees in stonnwater facilities (and
trees
as
stonnwater facilities). The Stormwater Partners including Conservation
Montgomery, the Natural Resources Defense Council, and Audubon Naturalist
Society have been working with DEP to promote this policy shift. We look
forward to working even more closely with DEP and other agencies as we move
into demonstration and implementation. Accordingly, we ask the Council to
request that DEP provide infonnation to the Council and the public about its tree­
related stonnwater initiatives and programs, including DEP's new tree protocol
encouraging Homeowner's Associations to keep and plant trees in specific ways,
when they maintain existing stonnwater ponds.
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6
(4) We recommend that the Council ask DEP to issue a statement of intent to transition
to making green infrastructure the default approach for
its
stormwater retrofits
program under the MS-4 permit.
Montgomery's countywide MS-4 permit, issued by
the Maryland Department of the Environment, is up for renewal in February, 2015. We
request that Montgomery County, through its lead stormwater agency DEP, issue a
statement of intent to transition to a Green Infrastructure basis for its stormwater retrofit
program, including for MDE's renewal ofthe County's stormwater MS-4 permit in 2015.
The Stormwater Partners are happy to develop cost-effective Green Infrastructure
recommendations to the Council and DEP, should these prove useful to the County's
transition to a Green Infrastructure-based stonnwater program.
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Mihill,
Amanda
From:
Sent:
Diane Cameron [Diane.Cameron@anshome.org]
Monday, July 21,20146:13 PM
Faden, Michael; Pecoraro, Karen; Mihill, Amanda; Boucher, Kathleen
Edwards, Stan; Hoyt, Bob; Miller, Laura; Lisa Alexander; Carson, Craig; Stevens, Amy;
Shofar, Steven; 'john@potomac.org'; Kelli Holsendolph
RE: Expedited Bill 25-14 - comments of Audubon Naturalist Society, Potomac Conservancy
and the Stormwater Partners
To:
Cc:
Subject:
Dear All,
Below is suggested language for a statement of intent by DEP and the Administration to provide to the Council. As noted
below, Expedited Bill 25-14, by connecting the concept of trees and forests with stormwater management and the MS-4
permit, creates an opportunity for larger conversations and commitments in this policy realm.
We are not requesting that this language become part of the bill itself; rather, we ask that DEP and the Administration
consider sending a memo to the Council with this language (or somethIng similar) that would become part of the
Council's record of discussion and deliberation with the Administration related to the topic ofthis bill.
Thanks for your consideration of our offerings!
Diane Cameron
&
Amanda John
On behalf of the Montgomery County Stormwater Partners Network, Potomac Conservancy and Audubon Naturalist
Society respectfully request that DEP use the following language as the basis for a tetter or memo from the Administration
to the Council. Our request is that such a letter or memo will become part of the written record ofthe Council's
deliberations related to Expedited Bill 25-14: Forest Conservation Law (FCL) Amendments to Article
N
within Sec.
22A-26.
Although the points below pertain to a larger sphere beyond that of the FCL, the context of this bill, within the County's
evolving use of green storm water infrastructure, including trees and forests provides an opportunity to expand County
policy and plans in this area.
Suggested language for DEP and the Administration to include in a letter or memo to the Council:
The Department ofEnvironmental Protection will develop and adhere to a Statement ofIntent to:
Create a revised implementation strategy for impervious surface retrofits to include the increased installation
and use ofgreen infrastructure, including tree-based practices used to capture and reduce runoff, targeted to
serve the runofffrom
51%
or greater ofthe county's impervious surface retrofit requirement under the Municipal
Separate Storm Sewer System (MS4) Permit issued in February, 2015.
The revised implementation strategy will provide for the escalating increase in use ofgreen infrastructure
practices, Environmental Site Design, and tree-based stormwater management technologies to the maximum
extent practicable for the full term ofthe MS4 permit. The policy ofthe revised strategy is to make green
infrastructurelESD practices the first priority
and
default basis for the retrofits program.
1
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In the selection ofgreen infrastructure retrofit practices for the revised impervious surface retrofit
implementation strategy, DEP will give priority to practices that, based on research, analysis and local
experience, are cost-effective on a life-cycle-costing basis when considering long-term maintenance along with
up-front costs, landowner acceptance, runoffreduction, and other water quality, environmental, and social and
economic impacts and benefits.
The Department ofEnvironmental Protection will host stakeholder meetings with the Montgomery County
Stormwater Partners Network and watershed, environmental and civic groups, and a public comment period in
the Fall and early Winter of2014-2015, in order to incorporate and reflect public input prior to submitting its
revised impervious surface retrofit strategy as part ofits MS-4 renewal application to the Maryland Department
ofEnvironment.
Diane Cameron
Conservation Program Director
(301) 652-9188 x22
From: Diane Cameron
Sent: Monday, July 21, 20144:18 PM
To: 'michaeIJaden@montgomerycountymd.gov'; 'Karen.pecoraro@montgomerycountymd.gov'; 'Mihill, Amanda';
'Boucher, Kathleen'
Cc: 'Edwards, Stan'; 'Hoyt, Bob'; 'Miller, Laura'; lisa Alexander; 'Carson, Craig'; 'Stevens, Amy'; 'Shofar, Steven';
'john@potomac.org'; Kelli Holsendolph
Subject: RE: Expedited Bill 25-14 - comments of Audubon Naturalist Society, Potomac Conservancy and the Stormwater
Partners
Dear All,
Below is my suggested amendment language to 25-14.
Thanks,
Diane
Accountability for adequate replanting and long-term tree sunrivability.
22A-S. Exemptions
o The current language in section 5(v) about a binding 5-year maintenance agreement apparently is
more about operator access to a site, than it is about ensuring long-tenn survival of replanted
trees. Replanting outcomes must be binding, transparent and enforceable for all stream
restoration projects.
(v)
Executed a binding maintenance agreement of at least 5 years with the affected property
owner or owners
2
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o Such agreement shall require the replacement of every tree removed and the planting of the requisite
number of new trees in the fIrst planting season after fInal stabilization; and a guarantee of the 5-year
survival of all trees affected by the proj ect.
o Such agreement shall require a legitimate contractor to inspect and maintain all stream restoration
projects at least once annually for five years.
o Public agencies undertaking stream restoration and stormwater facilityprojects involving tree
removal shall annually report to the public statistics on the number of such projects undertaken
in the subject year, the number of trees removed on a per-project and categorical basis, and the
survival and replacement rates for trees that are replanted.
From: Diane Cameron
Sent: Friday, July 18, 2014 2:46 PM
To: 'michael.faden@montgomerycountymd.gov'; 'Karen.pecoraro@montgomerycountymd.gov'; 'Mihill, Amanda'
Cc: Edwards, Stan; Hoyt, Bob; Boucher, Kathleen; Miller, Laura; Lisa Alexander; Carson, Craig; Stevens, Amy; 'Shofar,
Steven'; 'john@potomac.org'; Kelli Holsendolph
Subject: Expedited Bill 25-14 - comments of Audubon Naturalist Society, Potomac Conservancy and the Stormwater
Partners
Dear Michael, Karen and Amanda,
Thanks in advance for circulating our attached comments on Expedited Bill 25-14 to the members of the T&E Committee
and anyone else who needs to see them. We understand that the T&E Committee will take this up this Monday.
I've shared these comments with DEP, and have had a few conversations with staff about them. DEP Watershed
Management Division Chief Steve Shofar indicated that DEP can work with us on all of our substantive issues and
requests, so long as this bill moves forward without further delay. Our position on this bill is that we are neutral on it,
with these two provisos:
1)
Item 2 in our comments on the Bill is a request for a revision to the bill to mandate accountability for replanting
and tree mitigation components for these stormwater and stream projects, and tree/forest stand survival over a
5-year period. We will provide suggested legislative language to the T&E Committee and DEP on Monday to
accomplish this; we don't anticipate that this will cause a delay in enactment of the Bill.
2) The Stormwater Partners asks that DEP provide a written commitment that they will work with us to craft a
Green Infrastructure plan related to the MS-4, to include a significant role for tree-based practices and to
actively seek and promote lower-cost GI practices, and for furthering a Significant role for watershed,
environmental, and civic groups as partners with DEP. This will help to clarify for everyone, DEP's intention and
plan to make significant progress in the green infrastructure and tree-related elements in the next upcoming
phase of the MS-4 Program. This could take the form of a letter or memo from DEP to be shared with the
Council as part of the record of discussions around this Expedited Bill.
Thanks again,
Regards,
Diane
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