Legal rumblings start over pier proposal
September 26, 2005
The governing board of Tahoe’s planning agency will hear Wednesday a staff summary of public comments on its latest plan to regulate the lakeshore, as well as a first-hand explanation by the scientist whose study was used to justify a proposed limited ban on powerboats in Emerald Bay.
The Tahoe Regional Planning Agency solicited public comment for two months on the proposal, known as Alternative 6. The plan proposes 220 new private piers, 10 new public piers, and 1,800 new buoys. Mitigation fees for these structures, if approved, would total over $51 million over the next 20 years.
Some groups say they are prepared to legally challenge parts of the proposal if it is not changed.
The Sierra Club contends TRPA would be violating its mandate to protect the lake if it allows any new piers or buoys.
Alternative 6 lays out the harm the piers would cause, but provides no proof mitigation measures would work, said Michael Donahoe, conservation co-chair of the Tahoe Area Sierra Club.
“We have hired an attorney to look into our legal position and will follow through on what our options are,” Donahoe said. “We don’t hire an attorney very often, so this is serious.”
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The organization’s views are similar to those of the League to Save Lake Tahoe. Program director John Friedrich said that with too many unknowns associated with adding new piers and buoys, he hoped the agency would err on the side of protecting the lake.
Those in favor of piers had other issues with the plan.
“We would be prepared to do a challenge if the TRPA requires public access be a condition to any (pier) permit, which it implies in the document,” said Jay de Benedetti, president of the Tahoe Lakefront Owners Association.
The California Public Trust Doctrine says the area between high and low water – tidal waters – is publicly accessible for fishing, navigation and commerce. However, no agency has ever successfully asserted this right, said de Benedetti.
“The agency and Governing Board does need to be on notice that it isn’t just grumbling,” said Kathleen Farrell, executive director of the Tahoe-Douglas Chamber of Commerce, which questioned TRPA’s assertion the plan would have no economic impact on the region. “It is by far more serious than that.
“The next step is to involve the legislators from around the area,” Farrell said.
TRPA leadership is dedicated to bringing resolution to the shorezone issue, said spokeswoman Julie Regan. Legal issues are just one of the many challenges.
“That’s been the reason why for 20 years, this issue has not been resolved,” Regan said. “If this was an easy issue, it would have been resolved a long time ago.”
The agency weighs potential legal risks of any plan, said Joanne Marchetta, TRPA’s lead lawyer.
Public comment law
During an environmental analysis, law requires planners to review and consider public comments and respond to them in writing, said Marchetta. But the plan does not have to be changed according to comments received.
“It’s the agency’s responsibility to weigh those conflicting points of view and find a reasonable balance,” Marchetta said.
“Public input is intended to give us a sense of where we’ve made mistakes, and where we haven’t considered information,” she said. “And public sentiment absolutely gets considered, but it doesn’t mean we have to go the way of the majority.”
At least one comment from last year’s public review of the first five shorezone alternatives resulted in a change in this year’s Alternative 6.
Dan St. John, director of public works for Incline Village General Improvement District, lauded the agency for adding protections to sources of drinking water on Lake Tahoe. This year’s proposal included a quarter-mile buffer zone where development would be limited.
“One of the benefits of the public process that gets forgotten,” said St. John, “is it’s not just us talking to the TRPA, it’s us hearing what each other has to say. It allows us to get together as public interest parties to work out our differences independent of the public agency’s process.”
But a 78-page comment compiled by lawyers for the Tahoe Lakefront Owners Association never received a written response, said de Benedetti.
“They didn’t take any of our suggestions,” said de Benedetti. “What was this consensus that they came up with?”
Science on Emerald Bay
Glenn Miller, a scientist with the University of Nevada, Reno, will also attend the meeting on invitation by TRPA staff to explain his 2002 study of PAH concentrations in Emerald Bay. Polycyclic aromatic hydrocarbons are a product of gasoline exhaust and are toxic in high levels.
Miller told the Tribune in July the study was inconclusive and recommended no further regulation on boating.
“If you are regulating on a basis of toxicity, from what we’ve seen, there is no basis for further regulation,” Miller said. “But they are not regulating based on that.”
Lake Tahoe’s status as an Outstanding National Resource Water requires its waters not be degraded. Any contaminants, other than temporary ones, are considered degradation, according to the Environmental Protection Agency.
Temporary is defined as weeks and months.
– Contact Amanda Fehd at email@example.com
If you go
What: Meeting of the Tahoe Regional Planning Agency Governing Board
When: Wednesday, 9:30 a.m.
Where: North Tahoe Conference Center, 8318 North Lake Blvd., Kings Beach