HB 991
Department of Legislative Services
Maryland General Assembly
2021 Session
FISCAL AND POLICY NOTE
Enrolled - Revised
House Bill 991 (Delegate Gilchrist)
Environment and Transportation Education, Health, and Environmental Affairs
Tree Solutions Now Act of 2021
This bill temporarily alters the definition of “forest mitigation banking” under the Forest
Conservation Act (FCA) to include “qualified conservation” of forests. The bill also
requires a technical study to be conducted, to review changes in forest cover and tree
canopy in the State. The bill also establishes State tree-planting goals, related programs
and funding, and a related commission. The bill takes effect June 1, 2021, and specified
provisions terminate at the end of fiscal 2023, 2024, and 2031.
Fiscal Summary
State Effect: General fund expenditures increase by $291,600 in FY 2022, by $195,700
in FY 2023, and by $15.0 million annually from FY 2024 through 2031. Special fund
revenues and expenditures increase by $2.5 million annually from FY 2024 through 2031.
The bill also redirects a significant amount of existing special fund expenditures (discussed
below), largely in FY 2023, but also in FY 2024 through 2031. This bill establishes
mandated appropriations in FY 2024 through 2031.
(in dollars) FY 2022 FY 2023 FY 2024 FY 2025 FY 2026
SF Revenue $0 $0 $2,500,000 $2,500,000 $2,500,000
GF Expenditure $291,600 $195,700 $15,000,000 $15,000,000 $15,000,000
SF Expenditure $0 $0 $2,500,000 $2,500,000 $2,500,000
Net Effect ($291,600) ($195,700) ($15,000,000) ($15,000,000) ($15,000,000)
Note:() = decrease; GF = general funds; FF = federal funds; SF = special funds; - = indeterminate increase; (-) = indeterminate decrease
Local Effect: Local government operations and finances are affected, as discussed below.
Small Business Effect: Potential meaningful.
 Analysis
Bill Summary:
Forest Mitigation Banking
The bill modifies the definition of “forest mitigation banking” under FCA to include
qualified conservation. Specifically, under the bill, “forest mitigation banking” means the
intentional restoration, creation, or qualified conservation of forests undertaken expressly
for the purpose of providing credits for afforestation or reforestation requirements with
enhanced environmental benefits from future activities.
“Qualified conservation” means the conservation of all or a part of an existing forest that
(1) was approved on or before December 31, 2020, by the appropriate State or local forest
conservation program for the purpose of establishing a forest mitigation bank and (2) is
encumbered in perpetuity by a restrictive easement, covenant, or another similar
mechanism recorded in the county land records to conserve its character as a forest.
The bill allows for qualified conservation completed in a forest mitigation bank to be used,
by a State or local forest conservation program, as a method in establishing standards for
meeting afforestation or reforestation requirements under FCA. The afforestation or
reforestation credit granted for qualified conservation completed in a forest mitigation bank
may not exceed 50% of the forest area encumbered in perpetuity. Credits in a mitigation
bank may not be approved for debiting until qualified conservation of the mitigation bank
is complete.
These forest mitigation banking provisions of the bill apply retroactively and terminate
June 30, 2024.
Technical Study on Changes in Forest Cover and Tree Canopy
The Harry R. Hughes Center for Agro-Ecology (Hughes Center), in consultation with the
Department of Natural Resources (DNR), the Maryland Department of the Environment
(MDE), the Maryland Department of Planning (MDP), the Maryland Department of
Agriculture (MDA), and the Chesapeake Bay Program (CBP), as appropriate, must conduct
a technical study to review changes in forest cover and tree canopy in the State. The
technical study must, to the extent practicable, include:
 a survey and mapping of (1) existing forest cover and tree canopy in the State and
(2) potential afforestation and reforestation locations in the State;
 an analysis of the health and quality of forests in the State;
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 an analysis of the progress toward the State’s commitments to expand urban tree
canopy acres and plant riparian forest buffers under the 2014 Chesapeake Bay
Agreement;
 an analysis of observed and projected changes in land cover and the amount of forest
cover in the State due to development or other causes, using the Chesapeake Bay
Phase 6 Model, Chesapeake Assessment Scenario Tool, and county and municipal
forest conservation annual reports and land use plans, including the extent and
nature of (1) mitigation activities involving existing forest conserved, tree planting,
reforestation, or afforestation under FCA; (2) forest clearing, planting, and
mitigation activity inside and outside priority funding areas and locally designated
growth areas; and (3) the clearing and mitigation of forest considered to be a priority
for retention and protection under FCA and in State-identified targeted ecological
areas and greenways, hubs, and corridors, and the zoned density and sewer status of
those areas;
 an analysis of observed and projected changes in the amount of forest cover in the
State, based on (1) relevant State or local programs involving tree planting,
reforestation, or afforestation and (2) the amount of forest preserved through federal,
State, and local programs, including agricultural preservation, open space,
conservation easement, and other land preservation programs;
 a review of forest mitigation banking in the State, including (1) capacity and
location of active banks; (2) regulation of siting and creation of new banks;
(3) geographic limitations on the use of mitigation banks; (4) the relationship
between fee-in-lieu rates under FCA and the market for forest mitigation banks;
(5) whether expanding the use of forest mitigation banks could provide water
quality improvements and other beneficial results; (6) the extent to which existing
forest mitigation banks are composed of forests that have been created or restored
versus forests that are under qualified conservation; and (7) the effect of using
qualified conservation completed in a forest mitigation bank to meet afforestation
or reforestation requirements under State or local programs on the State’s policy of
achieving no net loss of forest; and
 a programmatic and funding review of federal, State, and local tree and forest
planting programs such as (1) Marylanders Plant Trees; (2) Lawn to Woodland;
(3) Backyard Buffers; (4) Conservation Reserve Enhancement Program (CREP);
and (5) other programs used to further Total Maximum Daily Load (TMDL)
Watershed Implementation Plans and Municipal Separate Storm Sewer System
(MS4) permit compliance.
By December 1, 2023, the Hughes Center must submit a report of the findings of the
technical study to the Governor and the General Assembly. The bill establishes the
General Assembly’s intent to review the findings and, based on the findings, to consider
any legislative or other changes necessary to improve the implementation and effectiveness
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of FCA, including any changes to the forest mitigation banking program in the State.
Provisions relating to the technical study and report terminate June 30, 2024.
Tree Planting Goals and Requirements
The bill’s provisions relating to tree planting terminate June 30, 2031, except as otherwise
specified.
The bill establishes that it is the policy of the State to support and encourage public and
private tree-planting efforts, with the goal of planting and helping to maintain 5 million
sustainable native trees in the State by the end of calendar 2031, as specified. It is the intent
of the General Assembly that at least 500,000 of those trees be planted in an “underserved
area,” as defined. MDE is responsible for tracking the State’s progress toward meeting
these goals. MDE serves as the lead agency to receive tree data from MDA, DNR, and the
Chesapeake Bay Trust (CBT), as specified. The bill establishes a 5 Million Tree Program
Coordinator position within MDE. The tree program coordinator must, by December 1
annually, consolidate the tree planting data and report the State’s progress toward meeting
the tree planting goals to specified legislative committees.
The Governor must formally pledge the State’s commitment to achieving the bill’s
tree planting goals through the U.S. Chapter of the World Economic Forum’s One Trillion
Trees Initiative.
In each fiscal year from 2023 through 2031, specified funding from the Chesapeake and
Atlantic Coastal Bays 2010 Trust Fund (2010 Trust Fund) (discussed below) must be used
to fund the tree program coordinator and 13 contractor positions within DNR’s
Forest Service to provide technical assistance, planning, and coordination related to tree
plantings, tree buffer management, and forest management, including invasive vine
removal, on public, private, and agricultural lands and in underserved areas. DNR must
make reasonable efforts to ensure that the contractors hired pursuant to this provision
reflect the geographic and demographic diversity of the State.
Tree Planting Programs and Initiatives
Urban Trees Program: The bill establishes an Urban Trees Program administered by CBT.
The purpose of the program is to plant native tree species in underserved areas by making
grants to qualified organizations for tree-planting projects in those areas beginning in
fiscal 2023. The bill specifies (1) eligible program expenses, which include personnel
costs, among other things, and (2) required prioritization for awarding program grants. The
program is funded by the Bay Restoration Fund’s (BRF) Wastewater Account in
fiscal 2023, as discussed in more detail below, and with any additional funds that may be
allocated to CBT through its annual budget process. The bill also requires the Governor to
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provide specified funding for the program in fiscal 2024 through 2031, as discussed below.
In addition, CBT must seek federal funds and grants and donations from private sources to
support the program. By October 1 annually, CBT must report to DNR and MDE regarding
the grants awarded by the program during the immediately preceding fiscal year, as
specified.
Conservation Reserve Enhancement Program: In fiscal 2023 through 2031, inclusive, a
landowner who enrolls land planted with a forested streamside buffer receives a one-time
signing bonus of up to $1,000 per acre of land enrolled in CREP. The signing bonuses must
be funded through money appropriated by the Governor in the annual State budget and the
BRF Wastewater Account, as specified by the bill (the funding is discussed in further detail
below).
The Commission for the Innovation and Advancement of Carbon Markets and Sustainable
Tree Plantings: The bill establishes a Commission for the Innovation and Advancement
of Carbon Markets and Sustainable Tree Plantings. MDE and, as necessary, DNR, must
provide staff for the commission. Commission members may not receive compensation,
but are entitled to reimbursement for expenses, as specified. The commission must develop
(1) a plan to achieve the State’s carbon mitigation goal of planting 5 million native trees;
(2) a plan to ensure that the planted trees are properly maintained; (3) recommendations
regarding the establishment of a Maryland-based carbon offset market to support the
State’s tree-planting goals; and (4) recommendations on reviewing State policies to reduce
and fully mitigate the clearing of trees during the construction of State highways and other
transportation projects. The bill establishes requirements governing what must be included
in the plans and recommendations. By October 31, 2022, the commission must report its
plan and recommendations to the Governor and the General Assembly. The commission
terminates June 30, 2023.
Bay Restoration Fund
After paying for eligible costs associated with upgrading wastewater treatment plants, as
specified, from BRF’s Wastewater Account, MDE must transfer the following amounts in
fiscal 2023: (1) $10.0 million to CBT for the Urban Trees Program established by the bill;
(2) $2.5 million to the 2010 Trust Fund in DNR to be used for tree planting on public and
private land; and (3) $2.5 million to MDA to fund tree planting under CREP and other
tree-planting programs on agricultural land, as specified.
The bill establishes restrictions on how the funds transferred to the 2010 Trust Fund can be
used. Funds transferred from BRF pursuant to these provisions are supplemental to, and
may not take the place of, funding that would otherwise be appropriated for the affected
programs and initiatives.
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Mandated Appropriations
In each fiscal year from 2024 through 2031, the Governor must include in the annual State
budget, an appropriation of (1) $10.0 million to CBT for the Urban Trees Program
established by the bill; (2) $2.5 million to the 2010 Trust Fund to be used for tree planting
on public and private land; and (3) $2.5 million to MDA to fund tree planting under CREP
and other tree-planting programs on agricultural land, as specified.
The bill establishes restrictions on how the funds appropriated to the 2010 Trust Fund can
be used. Funds appropriated to the 2010 Trust Fund are supplemental to, and may not take
the place of, funding that would otherwise be appropriated for tree plantings on public and
private land.
Chesapeake Bay and Atlantic Coastal Bays 2010 Trust Fund
In each fiscal year from 2023 through 2031, inclusive, $1.25 million from the
2010 Trust Fund must be used to fund MDE’s 5 Million Tree Program Coordinator
position and 13 contractor positions within DNR’s Forest Service.
The bill also adds DNR’s Green Shores Program to the list of programs to which the
BayStat Subcabinet must direct funding from the 2010 Trust Fund.
Current Law:
Forest Conservation Act – Generally
The Forest Service within DNR administers FCA, but it is primarily implemented on the
local level. FCA establishes minimum forest conservation requirements for land
development, and local governments with planning and zoning authority are required to
develop local forest conservation programs that meet or are more stringent than the
requirements of FCA. FCA applies 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 (0.9 acres) or greater, subject to certain
exceptions.
A proposed construction activity goes through a process of evaluation of existing
vegetation on a site and development of a forest conservation plan for the site defining how
forest area will be retained and/or afforestation or reforestation will be undertaken. If
afforestation or reforestation requirements cannot be reasonably accomplished on site or
off site (which can include use of off-site forest mitigation banks), payment may be made
into the applicable forest conservation fund to be spent by the State or the local government
on reforestation and afforestation, maintenance of existing forest, and achieving urban
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canopy goals. A State Forest Conservation Fund holds funds associated with projects
reviewed by the State, and local forest conservation funds are associated with local forest
conservation programs.
Forest Mitigation Banks
“Forest mitigation banking” means the intentional restoration or creation of forests
undertaken expressly for the purpose of providing credits for afforestation or reforestation
requirements with enhanced environmental benefits from future activities.
DNR is required to develop standards and adopt regulations for the creation and use of
forest mitigation banks, including criteria for tracking, crediting, maintaining, bonding, and
reporting mitigation bank activities. In addition, a local jurisdiction may develop
procedures for establishing forest mitigation banks as part of its local forest conservation
program. The establishment of mitigation banks and their use may not alter the sequence
for retention, reforestation, or afforestation on a development site. Criteria established by
local or State programs for the use and establishment of forest mitigation banks must
include protection and conservation in perpetuity of forest mitigation banks consistent with
reasonable management plans, through methods that include easements, covenants, or
similar mechanisms that must be in place at the time the credits are withdrawn. Credits in
a mitigation bank may not be approved for debiting until construction of the mitigation
bank is complete. In addition, a mitigation bank must maintain sufficient credits in reserve
to cover anticipated expenses of completion of the mitigation bank.
Interpretation of What Constitutes Forest Mitigation Banking
Historically, local forest mitigation banking programs have provided credits to developers
who preserve existing forested lands by recording restrictive easements that run in
perpetuity. However, the Office of the Attorney General (OAG) recently issued an opinion
addressing whether FCA allows off-site forest mitigation banks that were established to
preserve existing forest. In its opinion, OAG concluded that the placement of a protective
easement on an already-existing forest, as opposed to intentionally created or restored
fore