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Will A New Regional Plan Keep Tahoe Blue?

Martha Bridegam on
Jan 30, 2014

By the simplest accounts, peace has returned to Lake Tahoe.

California-Nevada cooperation has rescued the Lake Tahoe Regional Compact from years of deadlock and faltering communication over environmental governance by the Tahoe Regional Planning Agency (TRPA).

After Nevada threatened in 2011 to withdraw from the Compact, negotiations driven by both state governments' natural resource chiefs led to a major rewrite of the Compact's enforcement rules, the Regional Plan Update (RPU), which was adopted by TRPA's board in 2012. Further negotiations produced 2013 passage of parallel California and Nevada legislative measures that ended Nevada's pullout threat. The Compact, and hence bi-state governance of the lake, is saved. 

If you believe TRPA's accounts of "an unprecedented level of public support", it would seem the developer now sits down happily with the environmentalist under conifer, crag, ski lift or casino chandelier, and only a few loose ends and sore losers remain to be straightened out.

Except, this is a Western land-and-water fight. It isn't ever all happy, easy, or over. The settlement's costs included a painful schism in Tahoe's close-knit conservation community and some significant resignations. 

Two prominent environmental groups now back the RPU: the League to Save Lake Tahoe (creator of the "Keep Tahoe Blue" slogan) and the Nevada Conservation League. Their choice could be viewed as a political concession, or a generational shift, or both: from older views of environmental regulation as a consistent, detailed system of publicly maintained defenses against encroachment, to newer, more pragmatist incentive-driven compromises with businesses that involve active retrofitting of existing developed properties.

But dissenting groups remain. Two of these, the Sierra Club and Friends of the West Shore, have sued TRPA to block the new RPU and related rules. They allege the new rules allow too much density with mitigation measures that are insufficient or insufficiently tested. The case of Sierra Club and Friends of the West Shore vs. Tahoe Regional Planning Agency, Case No. 2:13-CV- 00267-JAM-EFB, in the Eastern District of California, was narrowed by a demurrer and goes to hearing March 5 on summary judgment motions by both sides. (The plaintiffs' opening brief is here.)

Laurel Ames, conservation chair for the Tahoe Area Sierra Club, argues that Californian and environmentalist negotiators gave up too much to Nevada to secure peace. She says some of her fellow dissenters have joked about printing a bumper sticker: "Save The Compact: Lose The Lake."

The RPU: Win-Win or Zero-Sum?


With the lawsuit's outcome still uncertain, leading figures from the negotiations insisted the renewed bond between California and Nevada officials would survive even a successful challenge to the RPU. Bill Craven, chief consultant to the California Senate's Natural Resources and Water Committee, said: "If [the plaintiffs] are successful in their litigation, and I of course have no idea, both states have already pledged to fix whatever the court identifies that needs fixing and get that fixed."

Any definite resolution is good news for many.A long-term watcher of the process said Tahoe has for years suffered a form of "planning blight," in that small business and property owners held back from undertaking development projects or renovations because of uncertainty about permission to build.

Supporters of the 2012 RPU say it reflects new science and urban planning principles as well as new political and budget considerations. It creates incentives to enlist builders and renovators in its mission to limit effects of real estate development within Lake Tahoe's environmental threshold carrying capacities.

The RPU rewards owners for installing new runoff filters and other "Best Management Practices" (BMPs) on existing "legacy" properties, such as those from the pre-Compact building boom of the 1950s and '60s. It seeks to shift density to urban sites deemed least environmentally delicate while compensating for runoff effects of density with improved BMPs. Further, it grants development rights in urban centers as multiples of "coverage" (structures and paving) that developers "retire" from areas rated as more sensitive, such as Stream Environment Zones.

Supporters, including the TRPA as litigants, argue the RPU doesn't weaken standards, but in some areas uses rigorous different ones, such as the Total Maximum Daily Load (TMDL) standard under the Clean Water Act. They say it responds to changed circumstances such as reduced concern over ozone levels and greater concern over fine particulate matter, which turns out to affect the lake's clarity more than nutrients such as nitrogen and phosphorus.

Darcie Goodman Collins, current executive director of the League to Save Lake Tahoe and an environmental scientist by training, said the old 1987 Regional Plan is less effective against recently understood threats, such as particulate matter or aquatic invasive species.

The plaintiffs say the RPU adds too much possible development area to the total that may be approved in the next 20 years: 2,600 residential units, 600 "bonus units" for urban centers, and 200,000 square feet of commercial floor area.

Plaintiffs also oppose the RPU's long-sought delegation provisions.

These give municipal governments approval power over larger projects than before, provided they get TRPA approval for "area plans" compliant with the new TRPA standards.

The plaintiffs allege that TRPA has not adequately studied the impact of its incentives for more ground coverage in denser areas, places too much faith in under-tested, expensive runoff mitigation, unrealistically seeks to increase compliance through incentives rather than adequate enforcement, monitors ozone insufficiently, and otherwise fails to protect the lake environment under the Compact.

"They don't have solid evidence that shows that this new strategy is going to work," said the plaintiffs' counsel, Wendy Park of Earthjustice. Discussing pressures for development that TRPA faces, she said, "Their strategy is misguided in claiming that development is going to be the solution to the lake's problems when it's really the cause, I mean, the biggest cause for clarity decline. It's indisputable that more urban development results in more stormwater runoff pollution and that stormwater runoff pollution is the cause of the clarity decline at the lake."

But TRPA general counsel John Marshall argued TRPA did an adequate analysis of denser coverage in urban areas. He said of the plaintiffs, "They didn't get the specific analysis that they demanded. That doesn't mean the analysis that we did was inadequate."

The new plan imposes standards for reduced automobile dependency through Level of Service (LOS) and Vehicle Miles Traveled (VMT) regulation and sets urban planning goals including walkability and affordability. The Sierra Club and fellow critics question whether density-related goals that may be good urban policy elsewhere might harm the clarity of Lake Tahoe by increasing runoff. Conversely, TRPA board member Clement Shute Jr., a prominent environmental attorney who helped lead the bi-state negotiations, argues it's inconsistent for the Sierra Club to back SB 375 air quality and density goals elsewhere in California but not at the lake.

Marshall cited a need to favor carrots over sticks in a time of worsened local poverty and limited public budgets: "You can bash existing businesses over the head and say you have to put in these BMPs and you have to do this, and the cost is not insignificant. So either you can take an approach where you try to force businesses to do this -- and given the tenuous nature of the economy at South Lake Tahoe and other places," he said that could push them out of business. "So what really the court is faced with is a policy choice."

TRPA further argues that its findings about the sufficiency of the RPU to protect the lake and local air quality are policy matters within its discretion that the court cannot properly second-guess.

End of a Nevada showdown 


Nevada's 2011 threat to withdraw from the shared California-Nevada regulatory process came in Nevada's SB 271 legislation, passed with support from the South Tahoe Alliance of Resorts (STAR), formerly the Lake Tahoe Gaming Alliance. 

SB 271 set a 2015 deadline for Nevada to withdraw from the Compact unless development-friendly changes were made to TRPA's governance process. Since the demands included revisions to the bi-state Compact agreement, they effectively sought approvals at all levels: from the TRPA board, both state legislatures, and Congress.

The most substantive demand, which was not met, would have reduced the levels of bi-state agreement required on the 14-member board. For a new project approval, it would have allowed only four rather than five of the required nine votes to come from the project's home state. The bill would have allowed any nine votes to pass a variance or rule change, whereas the Compact requires at least four delegates from each state to agree. More symbolic demands called for the TRPA to consider economic conditions and effects on commerce in changing the Regional Plan, and imposed the burden of proof on any challenger to the Plan's compliance with the Compact.

It was after SB 271's passage that Secretary John Laird of the California Resources Agency and Leo Drozdoff of the Nevada Department of Conservation and Natural Resources  created a "bi-state consultation" negotiating group to complete the overdue 20-year revision of Tahoe's main regulatory document, the 1987 Regional Plan. This group's recommendations formed the basis for TRPA's 2012-approved RPU. 

But SB 271 may not have been the main driver of those negotiations so much as a shout that drew high-level attention to existing pressures, which included a risk of losing federal environmental funding. Steve Robinson, a significant Nevada political figure who served on the TRPA board through the negotiations, said SB 271 "had very little chance of passage" in its original form as a unilateral withdrawal form the Compact, whereas in the conditional measure that passed, "If progress was shown it allowed the state to stay in, which was what essentially happened." 

Parallel legislative measures, California SB 630 and Nevada  SB 229, endorsed the RPU and accepted the economic impact and burden-shifting provisions but did not change the voting rules. The economic impact provision still requires an act of Congress to take effect but Robinson said that Congressional action "although important, is not an emergency." All parties, including the Sierra Club's counsel, Wendy Park of Earthjustice, said the burden-shifting provision did little more than restate existing law.

The Tahoe-area delegation, for its part, was said to be putting its energy into companion measures S 1451 and HR 3390 to reauthorize $415 million for environmental remediation at the lake.

Who Lost?

Theories vary about who lost in this not entirely win-win deal.

When the Los Angeles Times reported, "California blinks, Nevada wins", Shute wrote a heated rebuttal calling the Tahoe compromise "a win for the lake, not Nevada". In an interview he said Nevada interests didn't get all they wanted: that, for example, on the TRPA board's prior RPU revision committee, he had often cast the sole dissenting vote against developer -friendly proposals, but many of those shifted toward environmental protection under the bi-state process.

Further, the Nevada Legislature's willingness to approve SB 229 without SB 271's voting change demands may have been related to the re-election defeat of SB 271's original author, State Sen. John Lee, after a special effort by the Nevada Conservation League.

Three conservationists' resignations accompanied and arguably enabled the compromise.

At the League to Save Lake Tahoe, long-term executive director Rochelle Nason resigned in 2011, having been singled out by pro-development political figures as too critical and quick to litigate. "There was a great deal of conflict," she said.

Nason's successor, Goodman Collins, joined the bi-state consultation group as the California environmental representative alongside Kyle Davis, then political director of the Nevada Conservation League. Goodman Collins said the League's decision to back the RPU was "overwhelmingly" supported in a poll of its members. She said participation in negotiations "gave us a strong seat at the table" and a continuing "very strong voice in all of the conversations" including formation of area plans under the RPU. (The area plan process is moving fast: Douglas County and the City of South Lake Tahoe already have TRPA-adopted plans for parts of their respective landscapes.)

Davis called the plan an "opportunity to improve conditions on the ground, and should that not happen there are appropriate safeguards in place to keep things from getting worse."

The TRPA board's December 2012 RPU approval vote was over objections from two California board members: Byron Sher and Mara Bresnick. Sher, an elder of California environmentalism who served for many years as the chair of the Senate Committee on Environmental Quality, abstained from the final vote pending his imminent resignation. Shute said Sher was "under tremendous personal pressure because he felt loyalty to Secretary Laird" despite opposing the RPU proposal himself.

Bresnick raised objections in detail right up to the final vote (see the minutes here), then resigned before the January 2014 board meeting.

Bresnick said: "I am not anti-development and my background is representing development interests," but that she agreed with Sher "there weren't significant protections" in place for the environment while "there were significant incentives for development and redevelopment." They contested "what we thought were a lot of holes in the specific language of the plan." She said they proposed changes to the staff that were not incorporated.

Bresnick cited family reasons for her departure, as Sher reportedly also did. Bresnick said while both were dissatisfied with the outcome, their resignations were not in protest.

Afterbite

Several supporters of the RPU, including TRPA's own public affairs office, have criticized the Sierra Club as refusing to negotiate constructively, claiming the group and its Tahoe-area allies lack broad support for their dissenting position.

One of these was Shute. Another was Steve Teshara, principal of a firm known as Sustainable Community Advocates and a past official of Tahoe business organizations. He said: "There were a couple of strong-willed individuals who wouldn't compromise" and managed to "get organizations like Sierra Club and Earthjustice to support them."

Teshara agreed with the suggestion that recent political changes partly reflected changes in the  personalities involved. He added, "We just need a few more people to change... I have a feeling the litigation will be the last hurrah for some."

Ames, for her part, said the Sierra Club's two Tahoe-area chapters together have about 21,000 members and that, if few people are seen to speak for their positions at public meetings, there are others who want to "but they would lose their jobs."

She said, "Every day that I'm out in the Post Office or the grocery store or wherever will just stand there quietly and say thank you for what you're doing." She said they're afraid of trouble if they speak up. "It's a small town."