• Solar Leasing and Forest Conservation Easements in Maryland
  • August 10, 2017 | Author: David W. Beugelmans
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • Most utility-scale solar projects in Maryland to date have been located on agricultural land and have avoided tree clearing. However, as developers look to site future projects, it may become common to engage in tree clearing. This is already a challenging situation because it implicates the Maryland Forest Conservation Act (“FCA”) and potentially other natural resource issues. But for some sites it may also involve an additional challenge if the property is subject to a forest conservation easement. If this is the case, a developer may need to participate in a legal process at the county level to use a portion of the property for a solar farm. This article addresses the steps that a developer must take in order to modify a forest conservation easement.

    Overview of the Maryland Forest Conservation Act

    The General Assembly enacted the FCA (Md. Natural Resources Article §§ 5-1601 through 5-1613) in order to reduce the loss of Maryland’s forest resources during land development by making the identification and protection of forests and other sensitive areas a critical part of the site planning process. The areas of primary interest are those adjacent to streams or wetlands, those on steep or erodible soils, or those within or adjacent to large contiguous blocks of forest or wildlife corridors.

    Even though the Maryland Department of Natural Resources Forest Service administers the FCA, it is implemented locally under ordinances adopted individually by 22 of Maryland’s counties and 156 incorporate municipalities. While Maryland has 24 counties (including Baltimore City), the FCA only applies to counties that maintain less than 200,000 acres of their land area in forest cover. Garret and Allegany counties maintain more than 200,00 acres of their land area in forest cover and are therefore exempt from the FCA.

    Forest Conservation Easements

    Forest conservation easements are a critical part of a county’s local version of the FCA. Forest conservation easements protect a forest on private land by restricting specific activities and are typically established as part of a forest conservation plan, which must be adopted by landowners developing parcels of 40,000 square feet or greater.

    Among other reasons, a county may revoke an approved forest conservation plan and assess a penalty if it finds that (1) a provision of the plan has been violated; or (2) changes in the development or in the condition of the site necessitate preparation of a new or amended plan. It is therefore critical that landowners are proactive about getting county approval for their land use.

    In particular, owners of properties subject to easements must go through a legal process with the county in order to make changes to an easement, potentially including a hearing with the county planning board. In the event the county rules in favor of removing the easement, the landowner will still have many obligations. The landowner may be required to change his/her property’s forest conservation plan, resubmit a record plat showing a new easement, engage in off-site mitigation, or pay a substantial fee.

    Furthermore, the developer would be subject to the FCA’s afforestation and reforestation requirements. The FCA’s afforestation standard requires a developer to plant trees on a property if total forest coverage is below defined thresholds, even if the area planted has never been forested. The FCA’s reforestation standard requires a developer to replant forest that has been removed on a tract as a result of the project, and could involve the planting of ¼ acre of forest for every 1 acre removed or the planting of 2 acres of forest for every 1 acre removed based on the existing forest cover on the site and type of development prevalent in the area. Developers who are unable to satisfy either afforestation or reforestation requirements may be able to pay a fee to the local jurisdiction in lieu of actual mitigation (a “fee-in-lieu”), although the local jurisdiction has discretion and may deny such a request.

    Overall, the amendment process for a forest conservation easement can take months or even a year. If a project is larger than 2MW and is obtaining a Certificate of Public Convenience and Necessity (“CPCN”) from the Maryland Public Service Commission, the amendment process should be well underway or completed before filing an application for a CPCN to avoid stalling the project.