In response to a question on behalf of Anne Arundel County, the Office of the Attorney General opined on October 26, 2020 that “the placement of a protective easement on already-existing forest, as opposed to intentionally-created-or-restored forest, would not qualify as mitigation banking under the Act.” Further, they ruled that a separate but similar law (NR § 5-1607(b)(2)), “does not authorize the owner of an existing forest to place an easement on that forested land in order to sell ‘mitigation banking’ credits to developers.”
In our opinion, the plain language of the Forest Conservation Act makes clear that the only forests in Maryland that are eligible for treatment as “forest mitigation banks” from which developers may buy credits for that offset method are forests that were “intentional[ly]” created or restored “expressly” for that purpose and located in accordance with the Act’s “priority” location provisions. NR §§ 5-1601(o), 5-1601.1(c). Although existing trees that are preserved and protected in accordance with NR § 5- 1607(b)(2)(ii) might meet the Act’s requirements in a municipality, existing population center, or other designated area that a local jurisdiction has designated with DNR’s approval as part of a program approved by DNR—and although a local program’s implementation of that method might have elements in common with mitigation banking—the preservation of those trees would not qualify for treatment as a “mitigation bank.”
You can read the full OAG opinion here.