BILL ANALYSIS Ó
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: SB 630 HEARING DATE: April 9, 2013
AUTHOR: Pavley URGENCY: No
VERSION: April 2, 2013 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: California Tahoe Regional Planning Agency.
BACKGROUND AND EXISTING LAW
1. The Tahoe Regional Planning Agency (TRPA) was first created
in 1969 through a bi-state compact between California and Nevada
that was also ratified by the U.S. Congress. The compact was
revised in 1980 and gave TRPA authority to adopt environmental
quality standards (called "thresholds"). Thresholds on various
environmental indicators were first adopted in 1982.
The TRPA board consists of 7 voting members from each state and
one federal member. The members represent local governments and
the public. Development project approvals require 5 affirmative
votes from the state in which the project is located and a total
of at least 9 affirmative votes. To amend the regional plan or
the ordinances of the TRPA, 4 votes are required from each
state.
The compact allows either California or Nevada to withdraw based
on passage of a statute to that effect.
Prior to TRPA, both California and Nevada had state-only Tahoe
regional planning agencies: NTRPA and CTRPA. The NTRPA still
exists, but has virtually no workload. The CTRPA statutes are
still in the California code, but are basically a relic. Those
statutes have not been effective since the Legislature approved
the TRPA compact.
The states' share of funding TRPA was intended to be split so
that 2/3 would be provided by California and 1/3 by Nevada, with
additional federal funding not a part of that formula. Nevada,
although hard hit by the recession, is lagging, although there
are indications it may increase its contributions in the next
1
fiscal year. Currently, of the $14.7 million TRPA budget,
California contributes $4.1 million (28%) and Nevada contributes
$1.3 million (9%). Federal funds and other sources contribute
$6.6 million (63%).
A long-range regional plan was adopted by TRPA in 1984, and,
after litigation and protracted negotiations, a successor
regional plan was adopted in 1987. The regional plan is the
overall approach TRPA will use to achieve the thresholds. That
plan remained in effect until December, 2012, when a new
regional plan update was approved. Despite several prolonged
attempts, TRPA itself was never able successfully to complete
negotiations for a new regional plan after 1987. The 2012 update
resulted in large part from marathon negotiations on the part of
several key leaders and TRPA board members from both states who
established negotiations parallel to the TRPA process. Those
efforts resulted in amendments to the draft that TRPA had
proposed and the resulting regional plan update modified TRPA's
original proposal.
The 2012 update makes several significant changes that will have
the effect of expanding or expediting development projects many
of which were sought by Nevada interests or local governments.
In many respects, these changes are less dramatic than initially
proposed by TRPA, but they are nevertheless controversial, at
least in some quarters. These include but are not limited to:
1. Creation of a new "resort recreation" land use classification
that applies to 300 acres.
2. Significant delegation of land use permitting to local
governments with an appeals process to TRPA; a related provision
allows up to 3200 new residential units and 200,000 square feet
of new commercial space;
3. Several provisions to increase the density, height, and
extent of development in town centers, regional centers, and
other high tourism districts.
In the last three decades, multiple disputes between the two
states revolved around issues related to growth, environmental
protection, and land use regulations administered by TRPA.
Elected officials in Nevada and from local governments in both
states, as well as development and real estate interests, have
objected to what they call "stringent" or "heavy-handed"
environmental regulations.
2
These objections were contemporaneous with a host of unmet
environmental thresholds, a decrease by TRPA in environmental
monitoring, and a de-emphasis in technical, scientific work by
TRPA. Especially noteworthy is a well-publicized decades-long
decline in water clarity. There was some good news this year in
that winter water clarity improved for the second year in a row.
Summer water clarity remains in decline, but the rate of decline
may have slowed.
Urban stormwater runoff from South Lake Tahoe the older,
highway-focused developments along U.S. 50 has long been a
contributor to reduced clarity at the lake. Most of that runoff
occurs during the winter and spring, when rain and snowmelt
carry small, inorganic particles from the land, roads and other
developed areas into the lake. TRPA hopes the new regional plan
will allow many of these buildings to be razed with new
development focused in town centers. Similar runoff occurs in
other urban areas.
Conservation groups have noted that thresholds in the lake for
nitrogen, phosphorus, and iron are not in compliance. Sediment
standards for the tributaries into the lake are also not in
compliance. Phytoplankton growth, a measure of algal
productivity, is more than 4 times higher than the standard.
This is of particular concern for near-shore water clarity.
There are additional threshold non-compliance concerns with
ozone, air quality, scenic resources, and others. The Tahoe
basin is in non-attainment for various air quality laws.
Litigation alleging that the new regional plan is inconsistent
with the congressional compact and other provisions of law was
filed shortly after it was approved by the Sierra Club and
Friends of the West Shore. The regional plan update was
supported by the League to Save Lake Tahoe. Many in Nevada argue
that the litigation is reason enough to maintain SB 271,
discussed below.
SB 271 in Nevada.
The discontent with TRPA in Nevada has been historic but most
recently culminated with the passage of SB 271 in 2011. That law
demanded that a new regional plan be approved, and, as indicated
earlier, that occurred. That law stated that Nevada would
withdraw from the compact as early as 2015 (but with a possible
extension to 2017) unless California changed its laws regarding
the voting structure of TRPA for both the approval of regional
plan amendments as well as approval of projects. In both cases,
3
Nevada and some local governments from both sides of the state
line desire a pro-development voting structure. These items
would constitute amendments to the compact and would require
both states to adopt the same language and Congress to ratify
that language.
SB 271 also has two other requirements. One is that the new
regional plan reflect Lake Tahoe's economic conditions (both the
compact and the regional plan already do this). The second is
that a party challenging the regional plan has the burden of
proof to show that the plan violates the compact. Some legal
authorities believe this requirement re-states existing law.
California may be open to a compromise that allows the retention
of those provisions provided the voting structure provisions of
SB 271 are repealed.
There is no indication that California has any interest in
changing the voting structure. Even if it did, that change would
have to be approved by Congress and there is no indication that
Congress has any interest in the topic or that any such
congressional action would occur prior to the deadlines in SB
271.
SB 229 in Nevada.
Based on conversations and unofficial statements from various
Nevada officials, many in California believed that the
successful adoption of the regional plan update ended any real
need of, or utility for, SB 271. Apparently that is also the
case with some in Nevada. To that end, SB 229, introduced in the
2013 Nevada legislature, would repeal SB 271. However, at a
hearing on April 2, various elected and appointed Nevada
officials, some representing its governor, and including two
Nevada TRPA board members, said that the administration opposed
SB 229 in its current form. Many of the speakers at the hearing
openly acknowledged that SB 271 was considered effective
leverage over California. Negotiations are still underway to
determine if some successful way can be achieved to amend SB 229
in a way that could be acceptable in both states.
PROPOSED LAW
1. As a backup plan in case Nevada completes the implementation
of its statute that calls for withdrawal from the compact, this
bill would re-establish a new version of the California Tahoe
Regional Planning Agency to protect the many regional land use
planning and other interests of California on its side of the
state line in the Tahoe Basin.
4
2. The bill contains numerous findings emphasizing the
importance of trying to preserve a single entity, TRPA, as the
agency with overall responsibility environmental protection and
regulating development in the basin.
3. The bill discusses SB 271 in Nevada and that legislation's
explicit purpose of establishing a path for Nevada to withdraw
from the bi-state compact. It also notes that SB 271 calls for
matters on the Nevada side of the state line to be handled by
the existing Nevada Tahoe Regional Planning Agency.
4. The bill establishes a new governing board consisting of two
local government members appointed by the Governor, three public
members appointed by the Governor who shall be from
geographically diverse parts of the state, two members appointed
by Senate Rules and two members appointed by the Speaker of the
Assembly. The gubernatorial appointments would be subject to
Senate confirmation.
5. A technical advisory committee would be appointed consisting
of key leaders of agencies and local governments with interests
in the Tahoe basin including the State Lands Commission, Placer
and El Dorado counties, South Lake Tahoe, Lahontan Regional
Water Quality Control Board, and an invited member from the
Nevada Tahoe Regional Planning Agency.
6. CTRPA would be required to adopt an interim plan which would
be the same as the regional plan update approved by TRPA with
some exceptions. The exceptions are listed in section 67070 on
page 6 of the bill and are basically withdrawing the compromises
that were agreed to by California in the bi-state negotiations.
The most significant of these would eliminate the delegation of
land use approvals to local governments and retain the
traditional model of regional planning agency approval based on
required findings. In other words, the bill for the most part
retains the status quo in California that existed before the
regional plan update was approved.
7. The bill makes clear that the TRPA environmental thresholds
and elements of the regional plan would be retained by CTRPA.
8. Permits issued by TRPA would remain in effect under this
bill. Pending permits would be processed based on SB 630 and the
ordinances adopted by CTRPA which, at the outset, would be the
same procedures used by TRPA.
9. CTRPA would use TRPA ordinances, rules of procedure, and
5
other regulations on an interim basis until they are amended by
CTRPA.
10. The bill establishes where legal actions shall be filed
(Placer, El Dorado, and Sacramento counties) and other civil
legal procedures and penalties. It also provides that permits
would expire in 3 years unless construction has begun or the
project is delayed because of legal action.
11. The bill requires CTRPA to continue the successful work of
TRPA on aquatic invasive species.
12. The bill requires CTRPA to be included in the usual
budgeting process of the Department of Finance.
13. Lastly, the bill provides that those sections of the bill
that exclude parts of the updated regional plan from being
included in CTRPA and that would not authorize delegation of
land use planning to local governments would not become
operative provided Nevada repeals SB 271 on or before January 1,
2014.
ARGUMENTS IN SUPPORT
According to the League to Save Lake Tahoe, California needs a
contingency plan for protecting Lake Tahoe in case SB 271 in
Nevada remains in effect and Nevada fulfills is commitment to
withdraw from the bi-state compact. The League states that TRPA,
as controversial as it has been, has been the single most
important entity to help protect Lake Tahoe. It points out that
environmental issues in the basin do not respect state lines,
and offers as an example TRPA's successful program to checks
boats for quagga and zebra mussels.
While a single environmental regulator like TRPA is still the
best way to protect Lake Tahoe, the League believes that if
Nevada exits the compact in 2015, California needs a plan in
place and there is a seamless transition to a new CTRPA should
that become necessary.
Sierra Club California supports the bill because, while it is
not clear what Nevada will do, it makes sense for California to
prepare for a time when Nevada might leave the compact. It also
supports the provisions that the new regional plan constitute
the interim regional plan for the CTRPA, with the amendments
that strengthen the environmental performance of that plan.
ARGUMENTS IN OPPOSITION
6
The South Tahoe Association of Realtors opposes the bill
although it states if Nevada withdraws from the compact it would
support a CTRPA that adopts completely the most recent regional
plan update. It characterizes the bill as allowing California to
withdraw from the compact if Nevada does not act during the
remainder of its 2013 legislative session. It also suggests that
the bill is the product of special interests who are not
interested in bi-state cooperation.
COMMENTS
1. The author has expressed a major hope for discussions with
Nevada that could resolve these issues and result in SB 630 not
moving forward. As noted earlier, the bill already extends an
incentive to Nevada in that the provisions of SB 630 that would
create a different land use planning system in California than
exists under TRPA would not become operational if Nevada repeals
SB 271.
2. Senate Budget Resources Subcommittee has proposed a $100,000
expenditure to help with initial planning for CTRPA in the
2014-15 budget.
3. A note about the timetable:
Nevada has a 120-day session every other year. Thus, it will not
have a session in 2014 and it will have a 120-session in 2015.
The first deadline in SB 271 for withdrawal from the compact is
October 1, 2015.
Realistically, Nevada needs to act in some way on SB 271 this
year because it will not be in session in 2014. Inaction by
Nevada leaves California with no option except proceeding with
the re-establishment of CTRPA. It is not realistic that
California could re-establish CTRPA if it started doing so in
2015. It is a process that needs to start this year, continues
in 2014, and becomes operational in 2015.
4. The 2012-13 California budget directed the Secretary for
Natural Resources, in consultation with the California Attorney
General, to inform the Legislature if the new regional plan
update is consistent with the compact. The secretary has
confirmed that he believes that to be the case. The secretary
added that any deficiencies found by a court in considering the
new regional plan would be addressed expeditiously in
conjunction with the appropriate officials from Nevada. The
secretary is quite aware of SB 271 and SB 229 in Nevada as well
as SB 630. He commented that regional plan update signals a time
of renewed cooperation between the states and the stakeholders
7
in the basin and represents a significant step in balancing the
region's threatened environment and struggling economy.
SUPPORT
Sierra Club California
The League to Save Lake Tahoe
OPPOSITION
South Tahoe Association of Realtors
California Association of Realtors - unless amended
8