TRPA adopted amendments to the shorezone regulations in 2008, setting development caps on the number of new buoys and piers allowed in Lake Tahoe, and certified an environmental impact statement (EIS) for the amendments. The League to Save Lake Tahoe and Sierra Club (Plaintiffs) challenged filed a lawsuit, alleging that the EIS failed to explain and evaluate the impact of replacing unpermitted boat buoys currently on Lake Tahoe with permitted buoys on a one-for-one basis. Specifically, Plaintiffs challenged TRPA’s decision to consider all existing buoys on Lake Tahoe, both permitted and unpermitted, when establishing the environmental baseline. The baseline helped TRPA determine the maximum number of buoys, piers and other boating facilities that can be allowed on the lake. Plaintiffs argued that if TRPA had considered only the permitted buoys to establish its baseline, rather than permitted and non-permitted buoys, the threshold for measuring environmental impacts would have been much lower and thus the maximum number of allowable buoys and piers (and the number of boats and pollution in the Lake) would also have been lower. The Eastern District of California agreed with Plaintiffs and, in its 2011 decision, the court held that the unpermitted buoys must be excluded from the baseline. The court found that TRPA’s failure to explain and justify the baseline was arbitrary and capricious and, in the alternative, that TRPA’s use of the existing permitted and non-permitted buoys was contrary to the TRPA Compact. TRPA appealed the judgment.

In an unpublished Memorandum issued last week, the Ninth Circuit Court of Appeals affirmed the district court’s determination that TRPA’s failure to explain or discuss its selected baseline was arbitrary and capricious, but vacated the district court’s alternative holding that the selected baseline was contrary to the Compact. (League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 2012 U.S. App. LEXIS 4089 (9th Cir. 2012).) The court remanded to the district court with direction that TRPA “shall retain discretion on remand to determine the best way to explain and evaluate the impact of the proposed project and its choice of an appropriate baseline.” In other words, TRPA will be required to re-evaluate the previous baseline and explain why such baseline is appropriate. Until then, TRPA is not issuing permits for any new boating facilities.

Key Points

This decision suggests that under TRPA’s environmental regulations, TRPA must justify the environmental baseline it uses even where it uses a baseline that is consistent with the existing environmental conditions in the Tahoe Basin. Under CEQA, a lead agency is not required to justify its decision to use the existing environmental conditions as the baseline, even where existing conditions include prior illegal activity. In Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, the First Appellate District in California recently reiterated that prior illegal development is properly included as part of the CEQA environmental baseline because “[h]ow present conditions come to exist… is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.” (Id. at p. 559.)

Written By: Tina Thomas and Ashle Crocker

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