Environmentalists push to improve Maryland conservation law: 'The most forested areas are the least protected'

New Market — Catherine Campinos wonders if she should have known her favorite woods were destined to be cleared.

As Campinos and best friend Elaine Reinhold walked their dogs along a shady, verdant path beneath the brush and leaves just south of Lake Linganore, they could feel asphalt underfoot.


But it was nonetheless a shock for the Frederick County women last year when dozens of acres of the forest disappeared to make way for shops, townhomes and apartments now under construction near Interstate 70 east of Frederick. The development consummates a vision for an idyllic community laid in the late 1960s, halfway realized through the early 1990s, but then long stalled, leaving traces such as the incomplete road in the woods — until now.

The Lake Linganore Oakdale project is displacing more than 80 acres of hemlocks, oaks and tulip poplars, a significant ecological loss in a watershed that provides drinking water to the City of Frederick.


Maryland has enacted laws to protect and promote tree growth. But environmentalists say projects such as Lake Linganore Oakdale expose a loophole that threatens some of the state’s most important forests.

Preventing such losses in the future is their top priority in this year’s General Assembly session. Working with state Sen. Ronald Young and other lawmakers, they want to strengthen protections for priority forests.

“It’s really trying to protect mature trees,” said Young, a Frederick County Democrat. “They’re going to have to do more carefully designed work. I think they can still do the things they want and maintain good tree cover at the same time.”

State officials say Maryland’s tree canopy is growing, slightly. But new research shows that forests like the ones around Lake Linganore — tall, dense, expansive and biologically diverse — are rapidly disappearing.

Environmentalists say there are examples around the state where the statutory formulas to determine how many cut trees developers have to replace don’t actually require the builders to do any replanting at all. The Forest Conservation Act, it turns out, often protects trees, but not forests.

“At very high forest cover, the policy doesn’t really affect people’s decisions,” said David Newburn, a professor of agricultural and economic resources at the University of Maryland who recently authored a study on forest loss in Baltimore County. “The most forested areas are the least protected by the Forest Conservation Act.”

Developers say they don’t cut any tree down unnecessarily, because that would cost them twice — once for the clearing, and then in lost property value. At the same time, they say, the more restrictions that are placed on them, the more expensive their projects become, crimping efforts to grow affordable housing stock.

To David Wiley, the Lake Linganore forest losses are a classic example of the trade-offs that come with growth. The vice president of Elm Street Development, which is overseeing the project, called environmentalists’ concerns “a real head-scratcher.” He says Lake Linganore Oakdale is an example of the smart growth that Frederick County has long envisioned for the area, with a cluster of relatively new schools, existing water and sewer infrastructure and easy access to I-70.


But that doesn’t comfort Campinos. She remembers the day years ago when the branches and debris covering much of her cherished forest path disappeared. Then came the vans, the surveyors, the photographers. Now, there are model homes and a vast expanse of dirt.

“It looks like a coal mine,” she said. “We’ve learned nothing.”

The Maryland Forest Conservation Act was written to preserve trees by requiring developers to replant some of what they cut down. But the formulas that guide the process are not simple.

In general, builders are responsible for replacing trees they cut down, ideally nearby, if possible. In such cases, they can sometimes plant trees elsewhere, or pay a fee. That money is supposed to be used for replanting.

But the policy also lets builders avoid planting new trees or paying fees by hitting a magic number at which they have left just enough trees untouched. That level, which varies based on the type of land being developed, can still allow significant clearing.


Complying with the law can be tricky, Melanie Hartwig-Davis says, but the process is aimed at minding both property rights and environmental impacts. Hartwig-Davis is an Anne Arundel County architect who works with homeowners on projects in critical areas close to waterways. She serves on the board of the Maryland League of Conservation Voters.

“I think there’s a fluid balance between having a property owner be able to develop their property for their purposes but also negating the environmental damage that their development does,” she said.

Newburn’s research suggests that the law is least effective when applied to projects with the greatest ecological impacts.

Newburn analyzed changes in forest cover in Baltimore County before and after the Forest Conservation Act took effect in 1991. In the late 1980s and early 1990s, he found, forest losses were spread widely over many acres. At most, individual areas lost no more than 10 percent of their tree cover.

From 1993 through 2000, the new retention and replanting policies meant that tree cover on lightly forested land actually grew slightly. But the more forested the land, the larger the losses. On land that was at least 90 percent forested before development, forest losses were worse than before the act was adopted.

That’s because the policy’s formulas can allow for significant clearing — as at Lake Linganore — before meaningful replanting requirements kick in. Environmental groups say the law doesn’t see the forest for the trees.


The policy promotes retention of what are known as “priority forests.” But Elaine Lutz, a staff attorney for the Chesapeake Bay Foundation, argues Newburn’s research proves it isn’t working.

“‘Priority’ doesn’t actually have any meaning beyond our stating that it’s the best and it’s the most important and we should protect it,” she said. “We’re not actually giving any teeth to the thing we set up as being the most important.”

Not all forests are created equal. In the depths of large wooded areas are ecosystems that couldn’t exist along the edges of forest because of differences in light, temperature and wind. Birds such as the wood thrush and cerulean warbler, Eastern box turtles and various species of salamanders, bats and frogs thrive on — or, rely on — conditions only found in the forest interior.

That type of habitat is increasingly rare in suburban parts of the country. In a 10-acre forest, forest ecologist Geoffrey Parker says, often only about 5 acres can typically be considered interior.

“The effect of the exterior environment penetrates into a forest quite a ways,” said Parker, of the Smithsonian Environmental Research Center in Edgewater. “Forests in this area are very fragmented.”


That fragmentation has long worried Chesapeake Bay advocates. In addition to the biodiversity that only dense forests can offer, they are also unmatched in their ability to filter and purify water and air. Productive forests can prevent two-thirds of the precipitation that rains down on them from reaching waterways, thereby also protecting them from the pollutants and sediment that have for decades degraded water quality.

As the state grapples with how to restore the bay, spending to upgrade sewage treatment plants or reduce stormwater runoff, environmentalists have stressed that forests are effective (and free) cleanup tools that are already in place.

“The future of the health of the Chesapeake Bay is in large measure going to be driven by the land use decisions we make,” said James Lyons, a lecturer and research scholar at the Yale School of Forestry and Environmental Studies who lives in Anne Arundel County.

On the Eastern Shore, he said, fertilizer runoff from farms is seen as the main culprit in bay pollution. But on the more developed Western Shore, forest loss causes the most damage.

“Once you lose trees,” he said, “you accelerate runoff.”


State natural resources officials say forest conservation efforts are working.

In the first 15 years after the General Assembly passed the Forest Conservation Act in 1991, officials estimate that twice as much forest acreage was protected or required to be planted than was cleared. And in 2013, the state strengthened its forest protections by adopting a no-net-loss policy that pushes the state to maintain a tree canopy cover of at least 40 percent of land area.

That benchmark is not at risk, according to data collected by researchers at the University of Maryland and the Chesapeake Conservancy. The two groups independently concluded that tree canopy covers half the state, in part the product of broad state and local efforts to plant more trees.

“Our municipalities are crazy about their trees,” Candace Donoho, director of government relations for the Maryland Municipal League, told lawmakers at a November hearing on Forest Conservation Act reforms. “They look for little pockets where they can put little bitty tiny forests.”

The problem, environmentalists say, is the difference between canopy — total tree cover that includes even isolated or urban trees — versus dense forests and wetlands. The bigger the forest, the greater its environmental value.

Since 1991, the federal Chesapeake Bay Program estimates forest and wetland acreage has declined by 5 percent statewide — and by as much as 12 percent in Howard County, 14 percent in Anne Arundel County, and almost a fifth in Baltimore.


The solution, the advocates hope, lies in better defining a “priority” forest, and in making it harder for those trees to be cleared.

Legislation introduced by Young, the state senator from Frederick County, and by Del. Anne Healey, a Prince George’s County Democrat, would define priority forests as those of at least 10 or 20 acres, in most cases, or that have been identified as habitat for species that rely on interior forests.

It would forbid removal of priority forest without written justification that includes an accounting of alternatives that were considered and ruled out. The legislation would prohibit exceptions to the policy based solely on cost, on a developer’s preference for a particular design or layout, or to maximize density — rules that have been applied in some cases around the state but are not written into the law.

In any case, developers would have to preserve or plant at least an acre of trees for every acre of priority forest they cut down.

Increased planting requirements have doomed forest conservation legislation in the past. A push last year to require a 1:1 replanting ratio for any clearing — not just of priority forests — was doomed by cost concerns and space limitations.


Sen. Joan Carter Conway, the Baltimore Democrat who leads the Senate committee that will consider the legislation, predicted Young and Healey’s legislation has “a better shot.” Forest conservation bills are scheduled for hearings in both chambers of the General Assembly this week.

Lori Graf, CEO of the Maryland Building Industry Association, said her organization is still working through the implications of the bill. She said the group wants to help solve “whatever the perceived problems are.”

Wiley, the Linganore Lake developer, said the environmentalists' concerns have been overstated, both about forest loss in general and the clearing around his own project. People get concerned any time they see trees cut down, but he said the alarm isn’t always warranted.

“I don’t agree some of these areas should be called forest, frankly, when they’re just scrub growth,” Wiley said. “Before ’91, you didn’t have any trees preserved, and now you have acres and acres of preservation of forest.”

The woods didn’t seem like scrub growth to forest lovers like Campinos and Reinhold, who moved to Lake Linganore from Baltimore and Montgomery County, respectively, for the tranquility of the woods. When they returned one recent morning to their old walking spot, they hardly recognized it.

A natural stream had been straightened and fortified, its waters now muddied. Without canopy, sunlight brightened and warmed the forest floor.


And they could no longer catch the hoot of an owl or the clattering of a woodpecker. If it was there, it was muffled by the rumbling of construction equipment.