January 20, 2017

Club sues over weakened Lake Tahoe Plan

Lake Tahoe--dusk at Carnelian Bay, July 1938. Photo by Lois Plawchan.

Lake Tahoe–dusk at Carnelian Bay, July 1938. Photo by Lois Plawchan.

On Feb. 11 the Sierra Club and the Friends of the West Shore filed a fedeeral lawsuit challenging the Tahoe Regional Planning Agency’s Regional Plan Update (RPU) for Lake Tahoe. 

Club members in the Mother Lode and Toiyabe Chapters, including Laurel Ames and Bob Anderson, have been following development of this latest plan for a couple of years and have been quite disappointed by the end product adopted in early December. The RPU is a step backward and does not appropriately carry out the goals of the bi-state compact between California and Nevada to reverse environmental degradation of the Lake and bring its famed clarity back.

Filing suit was not an easy decision. Even as the court deadline for filing approached its final hours, the Club tried to persuade the agency to extend the deadline (that is, approve a tolling agreement) so that the Club and the agency could conduct talks to find a way to improve the plan and protect the lake without legal action. Unfortunately, the TRPA governing board could not muster the votes needed, and by 4 pm Monday it was clear that filing suit was the Club’s best option for protecting the lake.

The suit challenges new rules for Lake Tahoe that seriously reduce protections for the treasured mountain lake. The new Tahoe Regional Plan Update, approved in December by the Tahoe Regional Planning Agency (TRPA), shifts authority over future development decisions to local jurisdictions. The plan also allows those towns and counties to adopt weakened pollution controls that do not meet the minimum environmental requirements established by TRPA.

“In 1980, Congress, along with the states of California and Nevada, specifically entrusted a regional body to oversee all environmental protection and land use at Lake Tahoe, including project approvals, to ensure that local governments do not allow runaway development,” said Trent Orr, attorney with the public-interest law firm Earthjustice, which represents the conservation groups. “The 1980 Compact requires TRPA to approve all projects within the region, and to establish minimum regional standards for project approval. They can’t legally cede that power and leave it to the local governments that failed to protect Tahoe in the past. There is no reason to believe that cash-strapped local governments would adopt and enforce adequate environmental protection measures in the face of lucrative development proposals.”

Lake Tahoe is one of the largest and deepest mountain lakes in the United States, and TRPA’s fundamental purpose is to restore the lake’s water clarity and health. Under the challenged plan, water-quality monitoring does not require actual monitoring of the quality of runoff; it only tracks whether runoff catchment basins have been installed where needed.

The plan also encourages replacing low-rise buildings that surround the lake with taller, bulkier structures. Near the casino corridor of South Lake Tahoe, height restrictions have increased under the new rules from three to six stories; in smaller villages such as Tahoe City, from two to four stories; and in Nevada, casinos can reach up to 197 feet, or 19 stories.

The revised plan also allows local governments to set development regulations that do not meet minimum regional standards, including standards for how much land can be paved, or “covered”. This violates the Compact’s requirement that TRPA establish “a minimum standard applicable throughout the region”.

“This is a wrenching departure from past practice and is not in line with the spirit or law of the bi-state Compact created to protect the lake,” said David von Seggren of the Toiyabe Chapter of the Sierra Club in Nevada. “The people of Nevada, just like the people of California, care about the ecological health of Lake Tahoe. Rather than weakening the Compact or threatening to pull out completely, our leaders should be urging TRPA to develop the region in a way that not only protects the ecosystem but actually improves it.”

Susan Gearhart with Friends of the West Shore agreed that environmental protection should be TRPA’s first priority. “For generations, residents and visitors have enjoyed the High Sierra alpine splendor of Lake Tahoe. We must preserve those qualities that make Tahoe so special, and that we all love—clean water and clean air.”

Background

In 1968 California and Nevada entered into a bi-state agreement designed to protect natural resources and control development in the Lake Tahoe Basin. The agreement, the Tahoe Regional Planning Compact, created the Tahoe Regional Planning Agency to serve as the land-use and environmental-protection agency for the Lake Tahoe region and became effective through congressional authorization and the president’s signature in December 1969. When the 1969 Compact failed to stem growth as intended, the states adopted amendments authorized by Congress in December 1980. One of the most significant changes in 1980 was its requirement that one regional body, TRPA, review and approve all projects within the region, so that the welfare of the entire Tahoe Basin would be taken into account in decisions regarding new development proposals. The Compact also required TRPA to adopt “environmental threshold carrying capacities” — “environmental standard[s] necessary to maintain a significant scenic, recreational, educational, scientific or natural value of the region or to maintain public health and safety within the region.” Within one year, TRPA was required to adopt a regional plan that would achieve and maintain these thresholds.

After a lawsuit by the state of California to enforce the Compact’s regional plan and threshold provisions, a new regional plan took effect in 1987 that has since provided the framework for ensuring that all development is consistent with achieving and maintaining these thresholds. While the 1987 Plan has not succeeded in attaining many of these thresholds (including lake clarity, which has steadily declined over the years), it has more or less limited urbanization of the Tahoe region. But developers and other business interests in Nevada have long complained that the Compact and the 1987 Plan’s controls and standards are too restrictive. In 2011 pressure from these interests led to passage of a Nevada law (SB 271) that requires Nevada to withdraw from the Compact in 2015 if California does not agree to certain changes in the Compact and TRPA does not adopt a new regional plan. In reaction to this threat, TRPA hastened to complete the “Regional Plan Update” it had started, which proposed significant weakening of the 1987 Plan. Under the influence of SB 271 and political pressure to “save the Compact”, California agreed to much of this weakening in the resulting “Bi-State Consultation Recommendations”. On December 12, 2012, TRPA adopted a Regional Plan Update, which incorporated these recommendations.

Most significantly, they delegate local governments TRPA’s project-review and -approval duties for projects under 100,000 square feet in size. This delegation runs counter to the Compact’s intent to provide regional oversight of projects and violates the Compact’s clear directive that it is the TRPA governing board’s duty to review and approve projects and to make findings that any project it approves complies with the Regional Plan and TRPA’s rules to effectuate that plan. In addition, the Plan Update weakens the standards by which new projects are reviewed and approved, unlawfully leaving it to local governments to provide the “minimum standard[s] applicable throughout the region” that TRPA should be providing, and failing to ensure that such standards are at least as protective as TRPA’s.

The Plan Update also:

opens more than 300 acres of undeveloped land to “resort recreation” development, expanding Tahoe’s urban boundary;

allows up to 3,200 new residential units and 200,000 square feet of new commercial floor area;

allows increased concentration of coverage closer to the lake in urban core areas – up to 70% land coverage in designated “community centers.”

The Plan Update’s strategy to restore Lake Tahoe is to loosen development restrictions and incentivize redevelopment in urban core areas while removing existing development from sensitive outlying areas, on the theory that this would enable more environmentally sensible projects. However, this strategy fails to account for the drastic increase in new, concentrated development that the Plan Update allows and the harmful impacts of that increase, and does not ensure that compensatory removal of existing development on sensitive lands will, in fact, occur. The environmental analysis on the Plan Update fails to adequately study the water-quality, air-quality, and impervious-coverage impacts of that increase, and to ensure enough removal of existing development to offset the impacts of new development. As a result, TRPA’s required findings that the regional plan, as amended, “achieves and maintains” the thresholds are not supported by evidence.

The Plan Update will precipitate a drastic expansion of development that would be allowed without adequate environmental safeguards, preventing the achievement of the Compact’s core purpose — protection and restoration of Lake Tahoe. Most of Tahoe’s developable land is in California, which contains two-thirds of the Lake’s shoreline, where existing development poses the most serious water-quality problems.

The complaint is at earthjustice.org/sites/default/files/FINALTahoeRPUComplaint.pdf. It’s clear and well written: read it to learn more

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