20 years in the making: TRPA approves Shorezone program
October 22, 2008
After more than two decades of debate and more than eight hours of discussion by regulators on Wednesday, Lake Tahoe has a new set of rules regulating development of the area near its shoreline.
By an 8-5 vote, the Tahoe Regional Planning Agency’s Governing Board approved Lake Tahoe’s first comprehensive shorezone program since 1987.
The decision left two of the most divergent interest groups in the debate — conservation organizations and the Tahoe Lakefront Owners’ Association — disappointed.
Representatives from each side said they would be looking at their “options” to appeal the decision following Wednesday’s meeting.
Potential lawsuits stemming from adoption the shorezone program were a frequent topic of discussion at the meeting.
Two lawyers from Earth Justice, the legal arm of the Sierra Club, spoke on behalf of the Tahoe Area Sierra Club and the League to Save Lake Tahoe.
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One of the lawyers, Wendy Park, said the shorezone program’s environmental impact statement fails to assess the program’s true impacts on Lake Tahoe’s shoreline. Mitigation measures in the statement are also “unformulated and undefined,” Park said.
While the details still need to be examined, the possibility of a lawsuit arising from adoption of the shorezone program is “likely,” said Trent Orr, the second lawyer from Earth Justice.
Much of the debate on Wednesday focused around a section in the shorezone program which required the TRPA to consult with either California or Nevada to determine “legal public access” when the TRPA approved a project adversely affecting that access.
California’s Public Trust Doctrine grants title of lands under navigable waters up to the high-water mark to the people, allowing public access between Lake Tahoe’s high- and low-water marks.
Nevada does not recognize such a doctrine, and extends private property rights down to the low-water mark in Lake Tahoe.
A 1983 California Supreme Court decision established the state’s doctrine. The issue has never been litigated in Nevada, turning determination of what is “legal public access” into a potentially sticky situation.
Dan O’Hanlon, a lawyer representing the Tahoe Lakefront Owners’ Association, said the wording would place the board in a position where it would have to decide what “legal public access” is in Nevada, something which would likely attract litigation.
“It’s not something we want to do, but it’s something we’re prepared to do,” O’Hanlon said.
Near the end of the meeting, board member Shelly Aldean suggested the language in the code referring to “legal public access” apply only to California, a move which appeared to relieve the worries of some members of the board and pave the way for approval of the program.
Jan Brisco, executive director of the Tahoe Lakefront Owner’s Association, questioned the legality of the move following the meeting.
Several last-minute changes were made to the shorezone program on Wednesday and some board members wondered if its adoption should be postponed until some of the new language and outstanding issues could be more closely examined.
“We’re trying to push something right now that we’re trying to massage the heck out of,” said board member Donna Ruthe.
Several board members said they considered the shorezone update imperfect, but said 20 years of debate was enough.
“We’ve got to recognize the time has come to move forward with this,” said board member Allen Biaggi, adding the program can still be modified to address problems which arise.
Among its provisions, the shorezone program will allow the construction of 128 new piers and the placement of 1,862 new buoys on Lake Tahoe over the next 20 years.
The shorezone program is scheduled to take effect in December, while the details of a “Blue Boating” program to mitigate the effects of increased boating on Lake Tahoe is expected to be discussed by the Governing Board in March.