Guidance Information and Analyses
for Critical Area Decision Makers - Forest Mitigation

written by Tracy Batchelder

Purpose of Guidance Paper

Forests provide a range of important environmental, economic and aesthetic benefits. This paper is meant to provide guidance to local jurisdictions on the forest mitigation requirements under the Critical Area regulations and discuss some of the challenges jurisdictions face in implementing the mitigation requirements. Case studies of counties that are taking an innovative approach to addressing some of these issues are offered as well as other approaches that local jurisdictions might find useful to fulfill the forest mitigation requirements.

Background

Forest and developed woodland protection and replacement is one of the main goals of the Critical Area Act. As stated in the Criteria:

  • The total acreage in forest coverage within a jurisdiction in the Critical Area shall be maintained or, preferably, increased (COMAR 27.01.02.04).
  • All forests that are allowed to be cleared or developed shall be replaced in the Critical Area on not less than an equal area basis (COMAR 27.01.02.04).
  • Two of the three goals of the Critical Area Act are to “minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands” and “to conserve fish, wildlife, and plant habitat” (Nat. Res. Art. 8-1808).

    Forests and developed woodlands not only provide habitat for wildlife, but are also important in maintaining water quality by trapping sediments, taking up nutrients, and immobilizing toxic substances (Chesapeake Bay Program, 1995). The maintenance of forest cover is, therefore, crucial to achieve the goals of the Act. Forests and developed woodlands can also enhance the aesthetic beauty of an area and provide other benefits to landowners such as reducing heating and cooling costs by acting as an insulator around homes. This forest mitigation area (center of drawing) is located in order to link an existing forest with an existing developed woodland.

    This forest mitigation area (center of drawing) is located in order to link an existing forest with an existing developed woodland.By itself, maintenance of the area of forest cover will not be enough to maintain functioning forest ecosystems if the quality of the forest or developed woodland is not maintained or, preferably, improved in some cases. It is simply not enough to plant trees. Careful thought and planning should be given to what type of trees and what location will be optimal for maintaining or enhancing the functions of that forest ecosystem.

    Forest mitigation requirements for clearing The Critical Area Criteria specify when a property owner is required to replace trees (Table I). According to the Criteria, up to 20% of a forest or developed woodland can be cleared on a site designated as a Limited Development Area (LDA) or Resource Conservation Area (RCA) as long as the forest is replaced on not less than an equal basis or 1:1 mitigation.

    If more than 20%, but less than 30% is cleared, then the total surface acreage of the disturbed forest must be replaced on 1.5:1 basis. These mitigation ratios are based on the percentage of the on-site forest cleared, not the total acreage of the property. In addition, clearing violations “shall be replanted at three times the areal extent of the cleared forest” in lieu of the usual planting ratio required for the same amount of clearing for an approved purpose (COMAR 27.01.02.04). Jurisdictions have the option to impose additional requirements and penalties for clearing violations.

    Forest Mitigation Requirements for Clearing

    The Critical Area Criteria specify when a property owner is required to replace trees (Table I). According to the Criteria, up to 20% of a forest or developed woodland can be cleared on a site designated as a Limited Development Area (LDA) or Resource Conservation Area (RCA) as long as the forest is replaced on than 20%, but less than 30% is cleared, then the total surface acreage of the disturbed forest must be replaced on 1.5:1 basis. These mitigation ratios are based on the percentage of the on-site forest cleared, not the total acreage of the property. In addition, clearing violations “shall be replanted at three times the areal extent of the cleared forest” in lieu of the usual planting ratio required for the same amount of clearing for an approved purpose (COMAR 27.01.02.04). Jurisdictions have the option to impose additional requirements and penalties for clearing violations.

    TABLE 1
    Ratios for Forest Cleared

    Amount of Clearing

    Mitigation

    0% - 20%

    1:1

    20% - 30%

    1.5:1

    Clearing Violation

    3:1


    There are no reforestation provisions for sites designated as Intensely Developed Areas (IDA). However, the Critical Area Criteria specify that permeable areas in the IDA shall be established in vegetation when practicable, development activities shall minimize destruction of forest and woodland vegetation, and programs should be established to enhance urban forests to improve water quality and benefit urban wildlife. The Criteria clearly intended to ensure that any trees removed in the Critical Area would be replaced and that the total acreage of forest or developed woodland would either be conserved or increased in order to maintain or improve water quality and habitat. Table 2 provides examples of how the mitigation requirements are applied and Table 3 summarizes the recommended credit for trees and shrubs planted in the Critical Area.

    TABLE 2
    Examples of How the Mitigation Requirements are Applied

    There is 80,000 square feet of forest on a seven acre property. A developer clears 20,000 square feet for a minor subdivision which is 25% of the existing forest coverage on the property. Therefore, the developer is required to mitigate at a 1.5:1 ratio equal to planting 30,000 square feet of forest. A combination of trees and shrubs can be planted to enhance the structural diversity of the forest.
    There are 20 trees on a quarter-acre grandfathered lot. The landowner takes out 3 trees which is 15% of the existing forest coverage on the property. The landowner is therefore required to mitigate at a 1:1 ratio equal to planting three trees.

    TABLE 3
    Recommended Credits for Forest Mitigation

    Recommended Credit
    (Local jurisdictions can determine planting credits)

    Plant Size

    Plant Spacing

    100 sq. ft.1 tree(2-inch caliper)10-foot center
    400 sq. ft.1 tree (minimum: 2-inch caliper and either balled and burlapped or container grown)
    and understory vegetation (minimum: 2 small trees or 3 shrubs)
    tree: 20-foot center understory: 10-foot center
    50 sq. ft.1 tree (seedlings)7-foot center
    50 sq. ft.1 shrub3 to 7-foot center

    The General Assembly recognized the importance of including a 100-foot vegetated Buffer in the regulations as a habitat protection area in order to accomplish water quality and habitat objectives. Mitigation is also required for clearing vegetation in the Buffer. However, because the Buffer is a habitat protection area, the Commission has recommended different mitigation ratios depending on the development activity for which the vegetation is cleared. In recognition of the importance of the Buffer in protecting the resources of the Bay and its shorelines, trees or vegetation cleared in the Buffer for an approved purpose, other than ac-cess and shore erosion control, should be mitigated on a 3:1 basis. Table 4 outlines Commission recommendations regarding mitigation for clearing in the Buffer and is not meant to endorse development activ-ity in the Buffer. Any proposed disturbance in the Buffer requires the applicant to go through the local variance process. However, if a variance for disturbance in the Buffer is approved, at a minimum, mitigation should be required at the ratios outlined in Table 4.

    TABLE 4
    Minimum Mitigation Ratios for Clearing in the Buffer

    Clearing in the Buffer

    Mitigation

    Clearing for new development/redevelopment in Buffer if a variance has been granted3:1
    Clearing for new development/redevelopment in Buffer Exemption Areas (BEA) which meets the criteria in the BEA policy2:1
    Shore Erosion Control1:1
    Shoreline Access in Buffer2:1

    Afforestation Requirements

    In addition to the mitigation requirements for clearing, the Criteria specify that “if no forest is established on proposed development sites, these sites shall be planted to provide a forest or developed woodland cover of at least 15 percent” (COMAR 27.01.02.04). The following are examples of how this requirement is implemented in practice:

  • A vacant grandfathered lot is going to be developed. The property owner is required to afforest the property so that 15% of the lot is established in forest.
  • A grandfathered property has a dwelling on it and the rest of the property is in agriculture. The owner wishes to construct a 10x10 porch addition to the house. The property owner is required to afforest 15% of the residential site of the property, excluding the area in agricultural production as this is a separate use of the land.
  • A new subdivision is being developed on a vacant farm that is largely unforested. The developer can choose to afforest 15% of each lot or provide 15% afforestation for the entire subdivision in one area of the property. Afforestation of one area of the property may help to create or maintain a forest that will support a diversity of wildlife, particularly if it is located adjacent to an existing forest. requirement for existing vegetation on the property.
  • Once a property owner meets the 15% afforestation requirement, no additional planting is necessary for any development on the site. However, if any trees are removed during future development activities, the trees must be replaced as required by the Criteria and outlined in Table 1.
  • Lack of Mitigation Sites

    In several local jurisdictions, the size of the average property in the Critical Area is too small to reasonably accommodate the amount of mitigation required by the regulations. The Criteria provide that local jurisdictions can create a fee in lieu program “if the fee is adequate to ensure the restoration or establishment of an equivalent forest area” (COMAR 27.01.02.04). This may put more burden on the local jurisdiction by having to collect and spend the fees. However, off-site mitigation can be more ecologically beneficial for smaller lots in densely populated areas where on-site plantings may turn into landscaping rather than creating or contributing to a forest. Small landscaped areas lose many of the important benefits of a functioning forest ecosystem. The lack of mitigation sites is a problem that several counties are faced with now and one that rapidly developing counties will face in the future. Some counties have found innovative ways of addressing this issue (see case studies 1 and 2).

    A developer may choose to afforest 15% of each lot A developer may choose to afforest 15% of the entire subdivision
    A developer may choose to afforest 15% of each lot as shown on the left or may choose to afforest 15% of the entire subdivision as shown on the right. Afforesting in one area rather than on individual lots is generally a more effective way to create wildlife habitat.

    Case Study #1: Mitigation Banking in Anne Arundel County

    Anne Arundel County is highly urbanized and many of the lots in the Critical Area are small in size. Due to the size of the lots, there is little room for on-site forest mitigation thus property owners often pay a fee-in-lieu to the County. Subsequently, the County has a large fees-in-lieu fund and has had difficulty in spending the monies due to the lack of mitigation sites in the County’s Critical Area. Another option for landowners is to plant trees off-site on private property in the Critical Area through a mitigation banking scheme. Mitigation banking enables the County to avoid collecting fees-in-lieu while ensuring that trees are being planted in the Critical Area.

    There are five mitigation banking sites in the County. A property owner that is required to reforest can contact the landowners of these sites and pay them to plant trees on their property. The fees to plant on these sites are lower than the County’s fees-in-lieu thus there is an incentive to buy into the mitigation banking scheme. The County requires a landowner choosing to use mitigation banking to submit a planting plan to the County, post a two-year bond to guarantee the planting, and put the planting site into a perpetual conservation easement. County staff go out on-site to approve the site and then re-visit the site after it has been planted to ensure consistency with the planting plan. Staff return to the site after two years to ensure that the plantings are surviving. For more information, contact the Anne Arundel Office of Planning and Code Enforcement at (410) 222-7441.

    Case Study #2: Advertising for Mitigation Sites in Calvert County

    Calvert County has a fee-in-lieu fund and has had difficulty finding mitigation sites in the past, particularly large tracts of land to reforest. The County has been proactively locating mitigation sites through newspaper advertisements that offer free trees to landowners in the Critical Area. Fees-in-lieu are used to buy the trees and pay for all the related expenses to prepare and plant a site. The Calvert County Board of Commissioners established a Critical Area Reforestation Evaluation Committee (CARE) to develop the guidelines for the replanting program and to review and approve requests for tree plantings. CARE gives priority to reforestation sites greater than five acres and/or sites within 100-feet of tidal waters. The County consistently receives applications from property owners requesting trees on their property. For more information, contact the Calvert County Department of Planning and Zoning at (410) 535-2348.

    The Landowner Stewardship Referral Service

    The Landowner Stewardship Referral Service was developed by the Watershed Restoration Division at the Department of Natural Resources (DNR). The service is designed to help interested property owners enhance the natural resources on their property, create new habitats and protect existing ones. The DNR developed a guide that can assist resource professionals and private property owners in determining which programs are available and best-suited to meet their specific objectives. The programs listed in the guide include federal, State, and private, non-profit programs. Local jurisdictions can use this service to facilitate the identification of potential forest mitigation sites on private properties to meet the Critical Area Program requirements of no net loss of forest. Jurisdictions that have collected fees-in-lieu over the 1:1 mitigation ratio could also use the service to identify and fund creative programs and projects that contribute to water quality protection and habitat creation (i.e. wetland restoration). In addition, the service can provide technical assistance to landowners in the Critical Area seeking help in planting and enhancing habitat on their property. For more information and to obtain the Landowner Stewardship Referral Service Guide for Funding and Assistance call the Maryland Department of Natural Resources at (800) 989-8852.

    Critical Area Forest Mitigation and the Conservation Reserve Enhancement Program

    In some counties, fees-in-lieu could be used to plant trees and purchase easements in conjunction with the U.S. Department of Agriculture’s Conservation Reserve Enhancement Program (CREP). CREP promotes the planting of buffers along State waterbodies (i.e. streams, the Chesapeake Bay) and the restoration of wetlands on agricultural land by offering incentives to landowners to take a portion of their land out of production. CREP will only pay for planting the first 150 feet adjacent to a waterbody. An area planted with fee-in-lieu monies would be located landward of the 150-foot CREP forested buffer. Some landowners may opt to put an easement on the planted buffer and fee-in-lieu monies above the 1:1 mitigation ratio could be used to purchase easements on forested areas in the Critical Area that are contiguous or near a CREP site. A local land trust or soil conservation district will be charged with monitoring and enforcing the planted sites to ensure that the trees survive and the easement is upheld. For more information on this opportunity, contact the Critical Area Commission at (410) 260-3460.

    Technical Assistance and Education

    Technical assistance and education are important factors in ensuring that property owners are informed about the Critical Area and that mitigation is completed in a way that restores or enhances the forest resource. The use of native tree and shrub species should be emphasized since their chance of survival is greater as they are naturally adapted to their environment. Native species will also maximize the diversity of native wildlife that depend on the forest. In some instances, natural regeneration may be the most appropriate form of mitigation. Because natural regeneration comes from the local bank of plant material, it assures the growth of vegetation adapted to site conditions and climate, a diversity of species and habitat for local wildlife, and typically higher survival rates (Sternberg & Wilson, 1995).

    Plantings should be strategically located to enhance existing forest resources on the property. Planting adjacent to a forest or developed woodland, when possible, will help to create wildlife corridors. Creating an understory and leaving branches and leaves on the ground will enhance the structural diversity of the forest which is also important to plants and animals that depend on that forest for their survival (Lynch & Whigham, 1984; Marinelli, 1998; and Stein, 1993). An understory might include native shrubs and small trees such as mapleleaf viburnum, witch hazel or mountain laurel. The intent of the Critical Area Act was not only to maintain or increase forest cover, but to ensure that the quality of the forest or developed woodland is maintained in order to improve water quality and conserve plant and wildlife habitat. Commission staff are on hand to provide technical assistance with planting plans and to provide clarification on the mitigation requirements.

    Although planting individual trees has some environmental benefits, forest mitigation is more effective when plantings mimic the structural and species diversity found in natural forests. Although planting individual trees has some environmental benefits, forest mitigation is more effective when plantings mimic the structural and species diversity found in natural forests.
    Although planting individual trees has some environmental benefits, forest mitigation is more effective when plantings mimic the structural and species diversity found in natural forests.

    Case Study #3: Educating Waterfront Property Owners in Anne Arundel County

    Anne Arundel County has taken a proactive approach to educating property owners about the Critical Area Act and Regulations by developing a welcome package that is sent out to all new waterfront property owners located in the Critical Area. The welcome package includes a letter from the County Executive welcoming the property owner and informing them that they have bought a property in the Critical Area and that there are special requirements for these properties which are outlined in enclosed pamphlets. One pamphlet focuses on ways waterfront property owners can protect the 100-foot Buffer and the importance of a functioning Buffer. The other booklet provides some background on the Critical Area Act and requirements to be met when developing a property in the Critical Area, including impervious surface limits, afforestation and reforestation requirements, a sample Critical Area worksheet to be submitted with building permit applications, sample site plans, and an explanation of how and why the Buffer should be protected and expanded. For more information contact the Anne Arundel Office of Planning and Code Enforcement at (410) 222-7441.

    Technical Assistance through the Maryland Department of Natural Resources

    Foresters with the Forest Service at Maryland’s Department of Natural Resources (DNR) can provide technical assistance to landowners on tree planting and maintenance. Phone numbers of DNR Forest Service staff in each county can be obtained by calling headquarters at (410) 260-8531 or through the online forester at DNR’s web site at www.dnr.state.md.us/forests. In addition, landowners can buy seedlings at discounted prices from the John S. Ayton State tree nursery in Preston, Maryland. Call (410) 673-2467 for more information. In addition, the Landowner Stewardship Referral Service (see case study #3) can assist counties and landowners in identifying programs run by State agencies and private organizations that can provide technical assistance on different aspects of reforestation and habitat creation. Call (800) 989-8852 for more information.

    Generating Funds for Outreach and Educational Activities

    Local jurisdictions can apply for funds from organizations and foundations to support the development of outreach and educational materials and activities. For example, the Chesapeake Bay Trust is a nonprofit organization whose mission is to promote public awareness and participation in the restoration and protection of the Chesapeake Bay. The Trust offers grants for activities that support its mission. For more information on their grants program, call (410) 974-2941.

    Monitoring and Enforcement

    It is not only important to ensure that mitigation requirements are carried out, but that the plantings survive once they are in the ground. Most local jurisdictions have enforcement mechanisms and survival requirements for plantings to ensure that the intent of the Critical Area Act is met. Case Study #4 illustrates how Baltimore County has found an effective way of enforcing and monitoring forest mitigation requirements. Counties with less resources may want to consider teaming with established reforestation programs that have their own monitoring and enforcement component (see the section on Critical Area Forest Mitigation and the Conservation Reserve Enhancement Program).

    Case Study #4: Monitoring for Compliance and Maintenance in Baltimore County

    Baltimore County has developed an effective system for monitoring and enforcing the County’s forest mitigation requirements. Property owners are required to develop a Chesapeake Bay Critical Area Management plan, enter into an environmental agreement and post a security before they can receive approval of a project plan, minor subdivision plan, grading permit, or building permit. The County performs four inspections over three years and if the plantings are acceptable they release the securities according to a specific schedule. A large portion of the security is held until the final inspection to ensure that the County has enough money to hire a contractor, if necessary, to do the plantings at the end of the three years. The minimum survival rate shall be seventy-five percent of the total number of plants per acre at the end of the three-year maintenance agreement. For more information on the County’s program contact Baltimore County’s Department of Environmental Protection and Resource Management at (410) 887-3980.

    Bibliography

    Annotated Code of Maryland, Natural Resources Article,Title 8, Subtitle 18 (1995).

    Chesapeake Bay Program, Nutrient Subcommittee.(August, 1995). Water Quality Functions of Riparian Forest Buffer Systems in the Chesapeake Bay Water-shed.U.S. Environmental Protection Agency.

    Code of Maryland Regulations (COMAR). Title 27. Chapters 2, 5 & 9 (1992).

    Lynch, James F. & Whigham, Dennis F. (1984). Effects of Forest Fragmentation on Breeding Bird Communities in Maryland, USA. Biological Conservation, 28. 287-324.

    Marinelli, Janet. (1998). Stalking the Wild Amaranth: Gardening in the Age of Extinction. Henry Holt & Company.

    Stein, Sara. (1993). Noah’s Garden. Restoring the Ecology of Our Own Backyards. Houghton Mifflin.

    Sternberg, Guy & Wilson, Jim. (1995). Landscaping with Native Trees. Chapters Publishing Ltd., Shelburne, Vermont.

    For general questions or information about the Critical Area Program or questions relating to State oversight of local programs, e-mail Mary Owens or call 410-260-7516.