Environmentalists Sue Over New Lake Tahoe Plan: Is the Perfect the Enemy of the Good?

Lake Tahoe LandscapeThe Sierra Club and a local neighborhood group recently sued the bistate Tahoe Regional Planning Agency, challenging TRPA’s just-adopted Regional Plan for the Lake Tahoe Basin. That development strikes me as unfortunate and counterproductive. Let me briefly explain why.

The Lake Tahoe Basin, which straddles the California-Nevada border, has since 1968 been governed under a bistate Compact negotiated between the two states and ratified by Congress.  The key player under the Compact for land use planning and environmental regulatory purposes is the 15-member TRPA, composed of state and local appointees from the two states.

TRPA’s principal role is to adopt, administer and enforce a comprehensive Regional Plan to control development in and preserve environmental values for the Tahoe Basin.  Until last December, TRPA was operating under a Regional Plan adopted in 1987.  25 years later, the 1987 Plan–which has been instrumental in preventing ill-considered development of the Tahoe Basin–was in serious need of an overhaul and update.  And TRPA’s revised Regional Plan was, under the Compact’s terms, five years overdue.

Part of the delay was due to the formidable and multifaceted nature of the task involved.  So too was the fact that TRPA consciously engaged in a lengthy, “consensus-based” set of negotiations designed to get all of the relevant stakeholders involved in the Regional Plan update process.  That process wasn’t quick or pretty (it seldom is), but it ultimately produced widespread agreement on a new and improved Regional Plan.  No interest group was thrilled with the new Plan, but nearly all found it both acceptable and an improvement over the status quo–i.e., the definition of a credible political compromise.  Critically, the League to Save Lake Tahoe, the region’s most respected and longstanding environmental organization, was part of the consensus-building process and ultimately expressed its support for the revised Plan.  The TRPA Governing Board overwhelmingly approved the new Regional Plan on December 12th.

Among other things, the new Regional Plan imposes even stricter limits on new residential and commercial development than existed under the previous version; adopts water quality measures that promise to reverse the decline in Lake Tahoe’s world-renown water clarity; and incentivizes replacement of ill-considered, poorly engineered and environmentally damaging existing development with more environmentally benign, energy-efficient, and compact infill development projects.

That was not enough for two local Sierra Club chapters and a local homeowners group, who filed suit in federal court challenging TRPA’s new Regional Plan.  According to the lawsuit, the Plan should be even more environmentally protective than  it is, and delegates too much of TRPA’s land use authority to the Basin’s local governments (albeit authority that under the Plan is ultimately subject to TRPA review).

Now I am the last person to argue that litigation is an inappropriate legal and policy tool when it comes to Lake Tahoe.  In a previous professional life, I participated in litigation filed in 1984 by the California Attorney General, and joined by the League to Save Lake Tahoe, to enjoin a TRPA Regional Plan adopted by TRPA in 1984 that rather blatantly violated the bistate Compact’s environmental mandates.  (Both the district court and the Ninth Circuit agreed, and enjoined the flawed 1984 Plan; that, in turn, led to a three-year consensus process among stakeholders that culminated in the much-improved 1987 Regional Plan that guarded the Tahoe environment for the next quarter century.)

This is different, however.  TRPA’s new Regional Plan is by no means perfect.  But it is a marked improvement over the 1987 version, is likely to continue the steady improvement of the Lake Tahoe environment, and promotes the kind of sound redevelopment and infill principles that environmental advocates should applaud.

But there’s an even more important reason why the current lawsuit challenging the revised TRPA Regional Plan is ill-advised.  In 2011 the Nevada Legislature, unhappy with a TRPA it believes is too green and hostile to development interests, enacted a statute directing Nevada’s Governor to withdraw  from the bistate Tahoe Compact by 2015 unless: 1) TRPA adopted a new Regional Plan; and 2) California agrees to changes in the TRPA Compact’s voting procedures designed to give local governments greater influence on thr TRPA Governing Board and to facilitate more development within the Tahoe Basin than would be possible under the existing Compact.

TRPA’s December 2012 adoption of its new Regional Plan technically satisfies the first condition of the Nevada legislation–though with a far “greener” Plan than some Nevada legislators and business interests support.  (In the unlikely event the Sierra Club’s lawsuit is successful, however, it’s back to the drawing board for TRPA, with no serious expectation that a new Plan can or will be enacted by Nevada’s 2015 deadline.)  The State of California should not–and likely will not–accede to Nevada’s second demand for radical changes in the TRPA voting procedures; that would be a very serious step backward in ongoing efforts to preserve and protect the Tahoe environment.

The Governors of California and Nevada have for some time been quietly pursuing negotiations–parallel to those that culminated in the December 2012 TRPA Regional Plan update–designed to nudge Nevada away from the political precipice and abandon its threat to withdraw from the TRPA bistate Compact.

The problem with the Sierra Club litigation, besides the fact that it’s likely flawed in its merits, is that it seriously threatens these ongoing efforts to keep Nevada from abandoning the Tahoe Compact.   A repeal of the bistate Compact would be a very bad thing indeed, leading to fractured environmental decision-making at Lake Tahoe, significantly more ill-advised development on the Nevada side of the Basin, and increased pollution of Lake Tahoe itself.

It’s said that the road to purgatory is paved with good intentions.  I don’t doubt that the Sierra Club honestly seeks an even better environment for the Tahoe Basin than that which would occur under TRPA’s new Regional Plan.  But it would be both ironic and tragic if the current lawsuit contributes to the ultimate undoing of a landmark bistate Tahoe Compact that has served as a national and international model of sound environmental governance while simultaneously preserving a stellar natural resource for future generations.

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Reader Comments

22 Replies to “Environmentalists Sue Over New Lake Tahoe Plan: Is the Perfect the Enemy of the Good?”

  1. One can have the best laws, the best plans, and the best regulations in the world – but if they are not enforced, they are meaningless. The state of Nevada is saying it will stay in the Compact — but only if the Compact is not enforced. Such an arrangement is a dream come true for elected officials . . . they can claim to support strong environmental laws and point to public investment in restoration, while collecting campaign contributions from satisfied developers.

    But this arrangement is deeply dishonest, and ultimately it will undo Lake Tahoe, as word gets out that its environmental regulations are as illusory as laws against prostitution in Las Vegas. Further, it will undo broader environmental efforts, if this approach – strong laws, lots of public money, but no enforcement, at least against powerful interests – becomes a norm.

    The Compact is important, but public integrity is more important – better to let it go than to accept this Faustian bargain.

  2. One can have the best laws, the best plans, and the best regulations in the world – but if they are not enforced, they are meaningless. The state of Nevada is saying it will stay in the Compact — but only if the Compact is not enforced. Such an arrangement is a dream come true for elected officials . . . they can claim to support strong environmental laws and point to public investment in restoration, while collecting campaign contributions from satisfied developers.

    But this arrangement is deeply dishonest, and ultimately it will undo Lake Tahoe, as word gets out that its environmental regulations are as illusory as laws against prostitution in Las Vegas. Further, it will undo broader environmental efforts, if this approach – strong laws, lots of public money, but no enforcement, at least against powerful interests – becomes a norm.

    The Compact is important, but public integrity is more important – better to let it go than to accept this Faustian bargain.

  3. As the author of this piece was probably well aware, but chose diplomatically to dilute somewhat, the actual expression is ‘ the Road to Hell ( not Purgatory) is paved with good intentions’. He’ll is a much better term than purgatory for what we will end up with if Nevada leaves the table, and if they do, it is these groups who will now be primarily responsible.

    The Sierra Club and the wildly-inappropriately self-christened ‘Friends of the West Shore’ have got things badly, dangerously wrong here. No development, which is all that would satisfy these people, is simply not an option. Sensible development is, and should be encouraged. I only wish that these vexatious litigants had heeded the advice offered to them by Senators Feinstein and Reid and resisted their knee jerk reaction of ‘No!’ to absolutely everything that would lead to viable, vibrant communities living in harmony with the environment in the Tahoe Basin.

  4. As the author of this piece was probably well aware, but chose diplomatically to dilute somewhat, the actual expression is ‘ the Road to Hell ( not Purgatory) is paved with good intentions’. He’ll is a much better term than purgatory for what we will end up with if Nevada leaves the table, and if they do, it is these groups who will now be primarily responsible.

    The Sierra Club and the wildly-inappropriately self-christened ‘Friends of the West Shore’ have got things badly, dangerously wrong here. No development, which is all that would satisfy these people, is simply not an option. Sensible development is, and should be encouraged. I only wish that these vexatious litigants had heeded the advice offered to them by Senators Feinstein and Reid and resisted their knee jerk reaction of ‘No!’ to absolutely everything that would lead to viable, vibrant communities living in harmony with the environment in the Tahoe Basin.

  5. John Muir would turnover in his grave considering what the Sierra Club has become, a clan of lawyers who would rather sue first before helping people understand and address meaningful change in and around Lake Tahoe. Sierra Club lawyers are nothing more than environmental ambulance chasers eager to take your money.

  6. John Muir would turnover in his grave considering what the Sierra Club has become, a clan of lawyers who would rather sue first before helping people understand and address meaningful change in and around Lake Tahoe. Sierra Club lawyers are nothing more than environmental ambulance chasers eager to take your money.

  7. Richard Frank is entitled to his opinion, but from whom did you get your information? Many of us have participated in the RPU process for years (our comments are part of the FEIS/FEIR record). Your characterization of the process reflects what the TRPA staff would like people to believe, or the Chambers of Commerce, or the bureaucrats who have enriched themselves and their chosen consultants with Federal and State funds.

    320 acres of raw land designated Resort recreation, with another 320 allowed in the 208 Plan element (added at the last minute, after the bi-state committee concluded). Local jurisdictions, like Placer County, can approve a mixed-use project with up to 90,000 sq. ft. more than what it may replace. In town centers like Kings Beach (the largest building now is a Safeway Store @ 38,000 sq. ft.). The only mixed use projects that are economical are mega-resorts selling fractional units to tourists/visitors. Boulder Bay triples the number of units on the parcel, and Homewood Resort proposes 325 units where none exist today.

    The RPU promotes resort development at the expense of acknowledging any threshold carrying capacities. Redevelopment scaled to the existing roadways and utility infrastructure (much like Main Street methods from the ground up) is most compatible for incremental replacement of aging buildings. Lake Tahoe is not Vail.

    Did you know that about 80% of Lake Tahoe’s degradation comes from the California side, where 75% of the population resides? Perhaps a national competition between the two states, California and Nevada, for the most measureable achievement of the thresholds would motivate doing what is right. If you go to TahoePipeClub.com you’ll see the videos of over 100 pipes dumping polluted stormwater from roadways directly into the Lake.

    Please do some independent research before bashing groups that are in the trenches daily, and know the facts on the ground. Propaganda and greenwashing are widespread for the pro development side. It may come down to the Compact or the Lake.

    1. Research is only valid if it adheres to standard operating procedures and operating practices which the TahoePipeClub does not. While infiltration systems are the preferred way to go, it doesn’t mean that the pipes in the video clips are adding sediment to the lake. While a pipe may be unsightly, most of the sediment is removed before it reaches the lake via a swale or man-made wetland to slow the flow of water. If it isn’t effective, how do you explain the improved clarity of Lake Tahoe over the past decade? (The official average now at 75.3 feet.)

      1. Really, you apparently have not seen all the videos. At the Pasadena Pipe the turbidity has been measured at 260+ ntu during a storm water event. The TMDL is modeled for an effluent frojm the filters at 10-13 ntu’s. This is a absurd. I’ve lived here 34 years nad I don’t recall Jim Markle writing any comments on the RPU or attending the RPU Committee meetings.
        The pipes dump into the Lake, not through a swale.

        1. I don’t need to live here 34 years to understand the problems. I live on the north shore and I don’t need to view all the videos to understand the issues. It’s just that I haven’t seen lawyers do anything but delay the process. My comments stem from the article about the Sierra Club who chooses to sue first. I don’t need to attend more meetings, but I am involved in educating children and adults about issues facing the lake. I encourage people to recognize the challenges we face and I encourage them to get involved in some practical way. I may not know how to solve the pipe issue, but I do know that things are being done to improve lake clarity and we have evidence of that. Somehow I don’t think Sierra Club lawyers can take credit for that.

  8. Richard Frank is entitled to his opinion, but from whom did you get your information? Many of us have participated in the RPU process for years (our comments are part of the FEIS/FEIR record). Your characterization of the process reflects what the TRPA staff would like people to believe, or the Chambers of Commerce, or the bureaucrats who have enriched themselves and their chosen consultants with Federal and State funds.

    320 acres of raw land designated Resort recreation, with another 320 allowed in the 208 Plan element (added at the last minute, after the bi-state committee concluded). Local jurisdictions, like Placer County, can approve a mixed-use project with up to 90,000 sq. ft. more than what it may replace. In town centers like Kings Beach (the largest building now is a Safeway Store @ 38,000 sq. ft.). The only mixed use projects that are economical are mega-resorts selling fractional units to tourists/visitors. Boulder Bay triples the number of units on the parcel, and Homewood Resort proposes 325 units where none exist today.

    The RPU promotes resort development at the expense of acknowledging any threshold carrying capacities. Redevelopment scaled to the existing roadways and utility infrastructure (much like Main Street methods from the ground up) is most compatible for incremental replacement of aging buildings. Lake Tahoe is not Vail.

    Did you know that about 80% of Lake Tahoe’s degradation comes from the California side, where 75% of the population resides? Perhaps a national competition between the two states, California and Nevada, for the most measureable achievement of the thresholds would motivate doing what is right. If you go to TahoePipeClub.com you’ll see the videos of over 100 pipes dumping polluted stormwater from roadways directly into the Lake.

    Please do some independent research before bashing groups that are in the trenches daily, and know the facts on the ground. Propaganda and greenwashing are widespread for the pro development side. It may come down to the Compact or the Lake.

    1. Research is only valid if it adheres to standard operating procedures and operating practices which the TahoePipeClub does not. While infiltration systems are the preferred way to go, it doesn’t mean that the pipes in the video clips are adding sediment to the lake. While a pipe may be unsightly, most of the sediment is removed before it reaches the lake via a swale or man-made wetland to slow the flow of water. If it isn’t effective, how do you explain the improved clarity of Lake Tahoe over the past decade? (The official average now at 75.3 feet.)

      1. Really, you apparently have not seen all the videos. At the Pasadena Pipe the turbidity has been measured at 260+ ntu during a storm water event. The TMDL is modeled for an effluent frojm the filters at 10-13 ntu’s. This is a absurd. I’ve lived here 34 years nad I don’t recall Jim Markle writing any comments on the RPU or attending the RPU Committee meetings.
        The pipes dump into the Lake, not through a swale.

        1. I don’t need to live here 34 years to understand the problems. I live on the north shore and I don’t need to view all the videos to understand the issues. It’s just that I haven’t seen lawyers do anything but delay the process. My comments stem from the article about the Sierra Club who chooses to sue first. I don’t need to attend more meetings, but I am involved in educating children and adults about issues facing the lake. I encourage people to recognize the challenges we face and I encourage them to get involved in some practical way. I may not know how to solve the pipe issue, but I do know that things are being done to improve lake clarity and we have evidence of that. Somehow I don’t think Sierra Club lawyers can take credit for that.

  9. There never seems to be enough $$$$ to enforce the mandated achievement of the thresholds. Creating monitoring plans to do something does not cause a change. And there are plans for the plans. BMP’s on a parcel by parcel basis has not been achieved so the new Area Plans that will replace Community Plans will be allowed to incorporate Area-wide BMPs as long as they PROVE more environmental benefits. Mandated requirements with timeline completion must be enforced.

  10. There never seems to be enough $$$$ to enforce the mandated achievement of the thresholds. Creating monitoring plans to do something does not cause a change. And there are plans for the plans. BMP’s on a parcel by parcel basis has not been achieved so the new Area Plans that will replace Community Plans will be allowed to incorporate Area-wide BMPs as long as they PROVE more environmental benefits. Mandated requirements with timeline completion must be enforced.

  11. Jim-Thank God for the Sierra Club…the only TRPA watchdog we have left. Don’t just listen to the spin…the devil is in the details. Density for multi-family going from 15-25 units/acre. Hotel/fractional/timeshare a whopping 40 units/acre from 15. Allowed height increasing to 56′ in most towns, 95′ and 197′ in other areas. Coverage increasing from 50-70%. 250+acres of open space will be allowed to develop-a dangerous precedent that has already spawned the potential for another 320 acres.
    As a visual artist who dearly loves Lake Tahoe aren’t you a little concerned about how the future Tahoe will look?

    1. Actually, I feel better about future growth with more controlled development. It’s the older communities with deteriorating infrastructure that bothers me most. The Boulder Bay project is a prime example of one of the most environmentally sound developments on the lake. After 4 years in the courts at a hugh expense and finally gaining approval, the project has yet to break ground. Instead, we’re stuck with the Tahoe Biltmore, an inefficient eyesore with little or no appeal. It’s not good for the environment or the economy. Most people come to Lake Tahoe to relax and enjoy all that nature has to offer. We need to be constructive and willing to face change. Aside from those of us who live here year-round, we need to provide visitors with housing and transportation options that are appealing and protect the environment. We’re not going to benefit by trying to stop development, but we can benefit from controlled development. I must admit, I’m amazed that so many communities around the lake have little or no building codes in place.

      1. Boulder Bay never went to court. It was approved by TRPA, however since the project was trying to eliminate an egress from the Crystal Bay neighborhood, the surrounding neighbors complained and their egress was maintained by the County. The project was reduced from 875k sf to 600k sf plus, but the plan is so huge and out of whack they can’t get financing. 8 Buildings 48-75′ tall where now there is only 110k sf. Boulder Bay/Biltmore never performed their storm water management (BMPS) due in the year 2000 and now it’s 2013 and still no BMPS. The project hasn’t paid taxes since 2010 and is in default on their note. There are codes in place everywhere at the Lake, but older buildings are “grandfathered” in with their current structures until they remodel. It is the case everywhere in the country that there are older structures, which at the time everyone thought they were the cat’s meow.

  12. Jim-Thank God for the Sierra Club…the only TRPA watchdog we have left. Don’t just listen to the spin…the devil is in the details. Density for multi-family going from 15-25 units/acre. Hotel/fractional/timeshare a whopping 40 units/acre from 15. Allowed height increasing to 56′ in most towns, 95′ and 197′ in other areas. Coverage increasing from 50-70%. 250+acres of open space will be allowed to develop-a dangerous precedent that has already spawned the potential for another 320 acres.
    As a visual artist who dearly loves Lake Tahoe aren’t you a little concerned about how the future Tahoe will look?

    1. Actually, I feel better about future growth with more controlled development. It’s the older communities with deteriorating infrastructure that bothers me most. The Boulder Bay project is a prime example of one of the most environmentally sound developments on the lake. After 4 years in the courts at a hugh expense and finally gaining approval, the project has yet to break ground. Instead, we’re stuck with the Tahoe Biltmore, an inefficient eyesore with little or no appeal. It’s not good for the environment or the economy. Most people come to Lake Tahoe to relax and enjoy all that nature has to offer. We need to be constructive and willing to face change. Aside from those of us who live here year-round, we need to provide visitors with housing and transportation options that are appealing and protect the environment. We’re not going to benefit by trying to stop development, but we can benefit from controlled development. I must admit, I’m amazed that so many communities around the lake have little or no building codes in place.

      1. Boulder Bay never went to court. It was approved by TRPA, however since the project was trying to eliminate an egress from the Crystal Bay neighborhood, the surrounding neighbors complained and their egress was maintained by the County. The project was reduced from 875k sf to 600k sf plus, but the plan is so huge and out of whack they can’t get financing. 8 Buildings 48-75′ tall where now there is only 110k sf. Boulder Bay/Biltmore never performed their storm water management (BMPS) due in the year 2000 and now it’s 2013 and still no BMPS. The project hasn’t paid taxes since 2010 and is in default on their note. There are codes in place everywhere at the Lake, but older buildings are “grandfathered” in with their current structures until they remodel. It is the case everywhere in the country that there are older structures, which at the time everyone thought they were the cat’s meow.

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Richard Frank

Richard Frank is Professor of Environmental Practice and Director of the U. C. Davis School of Law’s California Environmental Law & Policy Center. From 2006-2010, …

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