Closer Look at Forest Conservation Law

Closer Look at Forest Conservation Law

County Council, conservation groups float proposals to increase fines.

If a Montgomery County resident lives on a one acre lot and wants to cut down 4,000 square feet of forest is he allowed? What if the forest in question contains a specimen tree that is more than three feet in diameter? Could a person on a two-acre lot clear 6,000 square feet?

Those questions may be eerily reminiscent of something from a middle school math text, but the answers are in a much trickier document, the Montgomery County Forest Conservation Law. (For the record, it’s yes, yes, no.)

The law, passed in 1992 and renewed with amendments in 2001, grew out of the Maryland forest conservation act, passed a year earlier. The state law was designed to be administered on a local level and allowed counties to exceed the state minimums in its conservation requirements, which Montgomery County did.

The forest conservation law requires Department of Park and Planning approval to remove 5,000 square feet or more of trees on a lot of 40,000 square feet or more, and requires a Planning Board-approved conservation plan for any property undergoing new development or subdivision, regardless of size.

The law entered the public consciousness this year after Washington Redskins owner Daniel Snyder violated it by clearing more than an acre of trees on the slope behind his Potomac home in December, 2004.

The Snyder controversy, and others that have followed, have focused conservation groups and citizens on a law that many people don’t know about and fewer understand. Those groups have examined the fairness and effectiveness the law, which was once hailed as a pioneering environmental measure. The biggest question has been “Does it have any teeth?”

Now legislators and county planners are weighing in. On Tuesday, Oct. 18, a task force comprising citizens and officials convened by U.S. Rep Chris Van Hollen (D-8th) largely to examine the Forest Conservation Law met for the third time.

The task force may make recommendations to increase the penalties for forest conservation law violations or to lower the area thresholds that trigger conservation requirements.

A week earlier the County Council held a public hearing on a bill introduced that would repeal the current maximum fine for violating the Law, making way for a significant increase.

County Councilmember Steve Silverman (D-At Large) and five other Councilmembers introduced the legislation Sept. 20.

All five of the testifiers at the public hearing agreed that “fine that is currently on the books is ridiculous,” Silverman said. “I think we’re going to impose some very tough penalties that will be at least 10 times what the current fine is.”

Currently, violators of the law can be served with a civil citation of up to $1,000 and an administrative civil penalty of up to $1 per square foot — $46,000 per acre — of illegally cleared forest. The minimum civil penalty is 30 cents per square foot, or $13,800 per acre.

Critics say that given the cost of real estate in Montgomery County, such penalties amount to the “cost of doing business,” especially when the clearing could significantly increase the value of the property.

“It’s really only people who are pretty wealthy that are able to afford these properties and these people are able to ignore the law as well,” said Meredith Lathbury, general counsel for the Potomac Conservancy, who testified at the Council hearing last week.

Lathbury said the Maryland provisions that allow counties to exceed the stringency of state laws are unusual. Neighbors like Virginia don’t allow that.

“Montgomery County should take advantage of that fact and really take a stand on this issue,” Lathbury said. “They might want to look at potential criminal penalties as a result, as a opposed to just financial. … The county needs to put their foot down and say, ‘This is the law and you can’t buy your way out of it.’”

Other groups’ proposals have varied, although few call for anything less than tripling the current penalty.

Park and Planning is developing its own set of recommended changes.

“We do think they should be higher. The dollar is an old amount. It costs more to buy forest, it costs more to plant forest these days,” said Cathy Conlon, Park and Planning’s forest conservation administrator until last year, and one of the architects of the Montgomery County law. “The administrative civil penalty probably needs to be two, three times as much as the dollar per square foot.”

That increase should serve as the baseline, Conlon said.

But there is the larger question of deterrence.

Is there a fine structure severe enough to make even reprobate landowners think twice?

Conlon suggested that some county forest, including forest on public lands, should be considered sacred and be linked to much harsher penalties as a deterrent to ever disturbing it.

Others suggested that a policy of deterrence should apply across the board.

The penalties “must very clearly be the ‘No Trespassing’ sign that warns potential offenders of just what it will cost them,” West Montgomery County Citizens Association President Ginny Barnes said in testimony to the Council. “The goal here is not ultimately to punish violators but to prevent them.”

Silverman said that however potent the increase in the forest conservation law penalties, the penalty is only one aspect of an important law that’s in need of an overhaul.

“I think this is going to be the first step in making changes to the forest conservation law, not the last step,” he said.