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Ninth Circuit Approves Plans for Lake Tahoe

SAN FRANCISCO (CN) — The Ninth Circuit ruled Wednesday that the Tahoe Regional Planning Agency's new rules include enough protections against water pollution caused by concentrated development.

Famous for its crystal clear waters and the surrounding panorama of snowcapped mountains, Lake Tahoe is a freshwater lake that straddles the California-Nevada border. At 191 square miles it is the largest alpine lake in North America, and the sixth-largest lake by volume in the United States.

Lake Tahoe is a major tourist destination, attracting skiers in the winter and swimmers, hikers, boating enthusiasts, and fishermen in the warmer months. The Nevada side hosts large casinos.

But Tahoe's signature clear waters are becoming more opaque due to increased nitrogen and nutrient levels, reduced phosphorus levels, and contamination from fine sediment due to urban stormwater runoff.

Congress in 1980 tasked the Tahoe Regional Planning Agency with adopting a regional plan to limit development and establish plans for land use, transportation, conservation and recreation.

In 2012, the planning agency updated the plan, concentrating new development into "community centers," and putting development and environmental protection largely into the hands of local government, through establishment of area plans. Included in the update was a total maximum daily load model, to reduce water contamination by certain pollutants.

The Sierra Club and Friends of the West Shore challenged the update, claiming the new rules would open hundreds of acres of undeveloped land to construction. They also claimed the environmental impact statement did not address the effects of runoff from increased development or do enough to protect the area's soils, streams, vegetation, fisheries, and sensitive wildlife habitat.

Though the planning agency defended its environmental studies, it prepared a stormwater modeling simulation to estimate the effects of concentrated development on Lake Tahoe and added more scenic protections and limits on expansion of community centers.

U.S. District Judge John Mendez sided with the planning agency in April, finding that the impact statement was adequate and that the agency's confidence that best management practices would keep water quality impacts to a minimum was justified by substantial evidence.

A Ninth Circuit panel affirmed that ruling on Wednesday.

U.S. Circuit Judge Mary Schroeder wrote for the panel that though the environmentalists had standing to sue, they did not prove the planning agency had acted arbitrarily and capriciously.

The groups said the environmental impact statement should have analyzed the cumulative effects of concentrated development on local watersheds in community centers rather than taking a regionwide approach.

But the inclusion of the stormwater model in the final draft of the environmental impact statement did address localized effects on the lake near community centers, Schroeder wrote. It relied on data about land use types, roads, and estimates about fine sediment, nitrogen, phosphorous loading and stormwater runoff to minimize contamination and prevent concentrated runoff.

The panel also upheld the planning agency's soil conservation analysis, noting that the agency was not required to do site-specific analysis for soil conservation until development was proposed.

Schroeder rejected arguments that the environmental studies did not adequately address cumulative impacts to biological resources, noting that the agency's selected alternative included mitigation measures to reduce runoff and improve water quality, soil conditions, and habitat availability, all backed by scientific evidence.

Contentions that best management practices would not protect the lake from contamination because of the planning agency's poor history of enforcing such practices met a similar fate. Among other things, the planning agency received grant funds for enforcing and improving its best management practices. The update also requires new developments to undergo mandatory best management practices inspections and establish maintenance plans before obtaining permits, which substantial scientific evidence indicates will help reduce water quality impacts.

Finally, the court upheld the award of costs in favor of the planning agency and denied the request for judicial notice as moot.

U.S. Circuit Judges J. Clifford Wallace and N. Randy Smith joined Schroeder on the panel.

Trent Orr with the San Francisco office of Earthjustice argued for the environmentalists.

Whitman Manley with Remy Moose Manley of Sacramento represented the planning agency.

Neither could be immediately reached Thursday evening for comment.

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