Lake Tahoe Basin

By

David Buchler

Originally, the Lake Tahoe Basin was the summer home of Indian tribes.

Discovery of “artifacts confirm the presence of the Washoe Tribe of Native Americans at

Lake Tahoe over 10,000 years ago.”1 In 1844 the Basin was “discovered” by John

Fremont and Kit Carson.2 Initially targeted for its vast timber stands which were cut to

support the mining boom, the crystal clear water and beauty of the basin quickly attracted

developers and tourists.3 Soon thereafter development began to adversely impact the

basin and its water quality.

Today, those who attempt to manage the Lake Tahoe Basin are faced with the

difficult task of balancing competing interests. The economy of the Lake Tahoe Basin is

predominantly based on lodging and gaming; real estate (including finance and

insurance), and; recreation.4 “Tourism amounts to 23 million visitor-days per year.”5 In

addition to the millions of annual visitors the Basin “is home to approximately 60,000

year-round residents.”6 While most are drawn by the aesthetic beauty of the Lake Tahoe

Basin and its favorable climate, the interests and goals of locals, tourists, and big business

are often at odds.

The location of Lake Tahoe brings into play a myriad of water related issues

including, but not limited to, Congressional apportionment, interbasin transfers, interstate

1
www.keeptahoeblue.org
2
Id.
3
Id.
4
http://www.tiims.org/Content/BasinTopics/econdemog/default.asp
5
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
January 2007 (University of California and University of Nevada Cooperative Extention).
6
www.regionalplanningpartners.com

1
water disputes, federally reserved water rights, federal compacts, the Federal Endangered

Species Act, and Fifth Amendment Takings. In discussing some of these interests and

issues, this paper will provide a brief overview of the Lake Tahoe basin; the development

of the basin and the impact development has had on water quality; regulatory responses

to development, and; conclude by discussing current challenges and potential

management solutions.

Lake Tahoe – An Overview

The Lake Tahoe Basin is located approximately ninety miles from Sacramento

and 150 miles from San Francisco.7 Its watershed covers an area of 511 square miles

with the Lake occupying 192 square miles of the total area.8 The Basin straddles the

California Nevada boarder; two-thirds of the watershed is located in California and the

remainder in Nevada.9 At the northwest corner of Lake Tahoe lies its only outlet, the

Truckee River, which is the main source of water for the cities of Reno and Sparks.10 The

river makes its way northeast for approximately 110 miles, running through Reno and

Sparks, eventually emptying into Pyramid Lake, home to “two species of fish ... listed

under the federal Endangered Species Act, the threatened Lahontan Cutthroat Trout and

the endangered Cui-ui.11 Pyramid Lake is wholly located on the Pyramid Paiute

Reservation.12

7
www.mapquest.com
8
Fink, Public Land Acquisition for Environmental Protection: Structuring a Program for the Lake Tahoe
Basin, 18 Ecology L.Q. 485 (1991). [herein after Structuring a Program for the Lake Tahoe Basin].
9
Imperial, Kauneckis, Moving From Conflict to Collaboration: Watershed Governance in Lake Tahoe, 43
Nat. Resources J. 1009, 1015 (2003). [herein after Watershed Governance in Lake Tahoe].
10
Kramer, Lake Tahoe, The Truckee River, and Pyramid Lake: The Past, Present, and Future of Interstate
Water Issues, 19 Pac. L.J. 1339, 1340 (1998). [hereinafter Lake Tahoe Interstate Water Issues].
11
Id.
12
www.nature.org; www.usgs.gov

2
 It is worth noting that these three bodies of water: Lake Tahoe, Pyramid Lake, and

the Truckee River; were the subjects of a congressional apportionment 1990, which

“divid[ed] the waters ... between California and Nevada.”13 This was the second and only

other time that Congress has exercised this power (under the Commerce Clause/Article I,

§ 8, and; the Supremacy Clause/Article VI, cl. 2); the other instance being “in the 1928

Boulder Canyon Project Act ...”14

Lake Tahoe is twenty-two miles long, twelve miles wide, and has maximum depth

of 1646 feet,15 making it the world’s eleventh deepest lake.16 To put the size of Lake

Tahoe into context, there is enough water in it to cover an area the size of California in

fourteen inches of water.17 Put another way, there is enough water in Lake Tahoe to

provide every person in the United States with fifty gallons of water per day for five

years.18

In addition to the remarkable volume and depth of water in Lake Tahoe, the

clarity of its water is extraordinary. In Roughing It, Mark Twain described the water of

Lake Tahoe as “not merely transparent, but dazzlingly, brilliantly so.”19 The dazzling

transparency of its water has, in part, led the United States Environmental Protection

Agency (EPA) to designate Lake Tahoe an “Outstanding National Resource Water.”20

This designation has only been conferred on two other bodies of water west of the

continental divide: Mono Lake (California), and Crater Lake (Oregon).21 Because of this

13
Sax, et al. Legal Control of Water Resources, Cases and Materials 4th Edition, 836 (ThompsonWest)
(2006).
14
Id. at 835.
15
http://www.keeptahoeblue.org/facts/fun.php
16
www.waterboards.ca.gov/lahontan/TMDL.Tahoe/Tahoe_ Index.htm
17
Id.
18
Id.
19
M. Twain, Roughing It, 174 – 175 (1872).
20
http://www.ntcd.org/community_issues.htm
21
http://www.trpa.org/default.aspx?tabid=95

3
designation, “Lake Tahoe is provided the highest level of protection under the

antidegradation policy [of the EPA] and no further degradation [is] permitted.”22 In

addition to the aesthetic quality of the clear blue water of Lake Tahoe it serves as a

“canary in the coal mine,”23 giving us a picture of the overall health of the Lake Tahoe

Basin.

Water clarity is commonly measured by a “Secchi Disk,” a white (sometimes a

black and white) disk which is eight to ten inches in diameter.24 The disk is lowered into

the water to the point it is no longer visible; this point is known as the Secchi depth.25 In

the late 1960s the Tahoe Research Group measured the Secchi depth of Lake Tahoe at

over one hundred feet.26 Today, clarity has been reduced to approximately seventy feet,27

and continues to fall at a rate of approximately one foot per year.28 Despite its declining

clarity “[o]nly two other sizable lakes in the world are of comparable quality – Crater

Lake in Oregon, which is protected as part of the Crater Lake national Park, and Lake

Baikal in the [former] Soviet Union.”29

The extraordinary clarity of Lake Tahoe “is attributed to the absence of algae

[which is nourished by nitrogen and phosphorous] that obscures the waters of most other

lakes.”30 Notably, “Lake Tahoe does not benefit from the flushing action or runoff like

other water bodies.”31 In fact, once a molecule of water enters Lake Tahoe it remains

22
http://www.tiims.org/Content/BasinTopics/water/default.asp
23
Erosion From Tahoe Fire May Hurt Lake’s Health, at www.csmonitor.com/2007/0705/p02s01-
usgn.html?page=1
24
UC Davis Research Group, Changes in Water Clarity at Lake Tahoe, June 2000.
25
Id.
26
www.keeptahoeblue.org
27
Imperial, Kauneckis, Watershed Governance in Lake Tahoe, at 1017.
28
www.keeptahoeblue.org
29
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 307 (2002).
30
Id.
31
www.tiims.org

4
there for approximately 700 years; this is in sharp contrast to nearby Fallen Leaf Lake

where a molecule of water cycles through the system after only eight years.32

The major factor adversely impacting clarity is nonpoint source pollution –

sedimentation and nutrient loading, erosion from development, runoff, and air pollution.33

According to The League to Save Lake Tahoe “many factors contribute to air pollution in

the Tahoe Basin, including automobile exhaust and road dust, smoke from wood stoves,

and pollution blowing in from the west.”34 Air pollution from the Bay Area, the

Sacramento Valley, and perhaps even as far away as southern California all contribute.”35

The “long-range transport of air pollutants was vividly demonstrated when prized Tahoe

lake trout were found to contain toxic organic compounds transported into the basin.”36

However, others assert that “automobile use within the Basin” is the biggest contributor

to air pollution.”37 There is merit to this claim when one considers that “[w]ith millions

of visitors each year to the Tahoe basin, automobile use exceeds tens of millions of

vehicle miles traveled annually.”38

Development of the Lake Tahoe Basin and the Impact on Water Quality

Despite General John Fremont’s “discovery” of the Lake Tahoe Basin in 1844,

the discovery of the Comstock Lode in Virginia City in 1859 was the impetus for growth

in the region. Mining operations had an insatiable need for timber to reinforce the

labyrinth of mine shafts.39 Because of this need the “economic value derived from

32
Id.
33
www.TRPA.org
34
www.keeptahoeblue.org
35
www.trg.ucdavis.edu/research/changes2.html
36
Id.
37
www.keeptahoeblue.org
38
www.trg.ucdavis.edu/research/changes2.html
39
Patten, Will Regulations Keep Tahoe Blue? Searching for Stewardship in Property Law and Regulatory
Takings Analysis, 27 T. Jefferson L. Rev. 187 (2004). [hereinafter Will Regulations Keep Tahoe Blue?].

5
logging and mining industries” was soon realized.40 By the time most of the mines were

“played out” in the 1880s41 “it is estimated that over eighty percent of the Basin’s forests

[had been] clear cut ...”42

When mining and the corollary timber industry became unprofitable, developers

soon realized the Basin’s economic potential in recreation and development.43 In the

1920s improved vehicle access and infrastructure began to provide a draw for gambling

and sightseeing tourists.44 Additionally, many people began building vacation homes.

In the late 1950s developers began construction on the Tahoe Keys (which

became a system of lagoons for 2000 luxury homes) by dredging and moving over 5

million yards of landfill into the basin.45 This development “destroyed a significant

portion of the 1100-acre Pope Marsh on the Upper Truckee River, the basin’s largest

wetland area.”46 Significantly, Pope Marsh is “the source of about a third of all water –

and most of the sediment – that flows into the famous lake.”47

Soon thereafter, “a developer purchased 9000 acres on the northern shoreline in

Nevada which ultimately became the [improvement district] of Incline Village.”48 These

developments, in part, helped house the growing number of permanent residents which

grew from 2850 to 16,000 people in the period between 1956 and 1962.49 In addition to

the development of residential property, casinos and “the development of winter sports

facilities triggered by the 1960 Winter Olympics in Squaw Valley” have had a huge

40
Id.
41
http://pubs.usgs.gov/circ/circ1170/mining.htm
42
www.keeptahoeblue.org
43
Patten, Will Regulations Keep Tahoe Blue?, 27 T. Jefferson L. Rev. 187 (2004).
44
Id.
45
www.keeptahoeblue.org
46
Imperial, Kauneckis, Watershed Governance in Lake Tahoe, at 1019, 1020 (2003).
47
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2007/09/05/MNLLRLVHU.DTL
48
Fink, Structuring a Program for the Lake Tahoe Basin, 18 Ecology L.Q. 485, 501 (1991).
49
Imperial, Kauneckis, Watershed Governance in Lake Tahoe, at 1019 (2003).

6
impact on the basin.50 In fact, the “[u]rbanization of the basin has eliminated 75 percent

of its marshes, 50 percent of its meadows, and 35 percent of its stream zone habitats.”51

In addition to providing habitat vital to wildlife, [w]etlands form an important buffer

between the land and receiving waters.”52 These areas are so critical because wetlands

“not only actively remove nutrients but slow the flow of water, permitting all but the

finest of sediment to settle out ...”53; thus preventing substances proven to be detrimental

to water clarity and quality from entering Lake Tahoe.

Regulating Development in the Lake Tahoe Basin

As development in the Basin proceeded unchecked, some began to realize the

need to implement both planning and protection mechanisms. One of the earliest (and

most misguided) efforts came in 1959 with the “creat[ion] of the Lake Tahoe Area

Council (LTAC), a nonprofit organization representing an array of basin interests.”54 The

LTAC subsequently established the Tahoe Regional Planning Commission (TRPC),

which was comprised of “a regional planning commission in each jurisdiction.”55 This

resulted in the creation of the “Lake Tahoe Regional Plan 1980 ...” which “... included a

divided four-lane highway encircling the lake, with a bridge over Emerald Bay (now an

International Natural Heritage Site), and projected a buildout population of over

313,000 ...”56 This horrendous “plan” fortunately never came to fruition and had the

positive effect of “strengthen[ing] support for a nonprofit organization, the League to

50
Id.
51
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
January 2007 (University of California and University of Nevada Cooperative Extention).
52
www.trg.ucdavis.edu/research/changes2.html
53
Id.
54
Imperial, Kauneckis, Watershed Governance in Lake Tahoe, at 1009, 1020 (2003).
55
Id.
56
Id.

7
Save Lake Tahoe, created in 1957 to monitor development and advocate greater

environmental protection.”57

In 1962, California and Nevada initiated the construction of infrastructure that

would export all sewage out of the Basin.58 Despite the fact that “direct sewage

discharges into the lake had been prohibited since 1915 ...” sewage spills and problems

associated with septic tanks allowed untreated or poorly treated water to be discharged

into the watershed.59 Ironically the export of effluent water from the Basin had the effect

of opening some land to development that had previously been unsuitable because of the

logistical inability to install septic systems.60 In 1978, the task of exporting all sewage

and effluent from the Basin was completed.61

Perhaps the most significant protection effort was the enactment by California and

Nevada, and subsequent Congressional ratification of the Tahoe Regional Planning

Compact. In 1969, the Compact created the Tahoe Regional Planning Agency (TRPA),

the “first bistate regional environmental planning agency in the country.”62 The TRPA is

“an overlay agency with jurisdiction following natural watershed boundaries and
63
regulatory enforcement within the watershed.” TRPA is comprised of a Governing

Board (of 15 members, “seven from California, seven from Nevada and one non-voting

Presidential Appointee”64) and an Advisory Planning Commission (a 19-member board

57
Id.
58
Id. at 1018.
59
Id.
60
Id.
61
Id.
62
www.trpa.org
63
Kahn, Baikal Beckons: Siberia’s Sacred Sea Compels the Tahoe Watershed Protection Approach, 18
Colo. J. Int’l Envtl. L. & Pol’y 379, 387 (2007). [ herein after Baikal Beckons].
64
www.trpa.org

8
“made up of local planners, general members of the community and other representatives

who are experts in their fields).65

Its “duties include establishment and maintenance of environmental threshold

carrying capacities and adoption of a regional plan which will preserve the extraordinary

but fragile locale by regulating growth.”66 In an attempt to effectuate its goals, “in 1972

TRPA adopted a Land Use Ordinance that divided the land in the Basin into eight ‘land

capability districts,’ based largely on steepness but also taking in to consideration other

factors affecting runoff.”67 The system, known as the Bailey land capability system, is

“based primarily on the official USDA soil maps for the Tahoe Region.”68 It assigns to

each soil type “a land capability class ranging from one to seven, with capability one

being the [second] most environmentally sensitive to development.”69 The land which

receives the highest designation of environmental fragility of 1b, are Stream Environment

Zones, or SEZs.70 These are areas “found to be influenced by a stream or high

groundwater.”71 Stream Environment Zones are really wetlands. They “are especially

vulnerable to the impact of development because, in their natural state, they act as filters

for much of the debris that runoff carries.”72

“The fundamental concept underlying this system was that land should be

developed in accordance with its capacity for development.”73 However, because the

Ordinance contained so many exceptions it had virtually no effect on limiting

65
Id.
66
Mozee, Government Regulation of Ski Resort Development in the Lake Tahoe Region, 11 Stan. Envtl.
L.J. 68, 84 (1992).
67
Tahoe-Sierra Preservation Council, Inc. v. TRPA, 535 U.S. 302, 309 (2002).
68
www.trpa.org
69
Id.
70
Id.
71
Id.
72
Tahoe-Sierra Preservation Council, Inc. v. TRPA, 535 U.S. 302, 308 (2002).
73
Fink, Structuring a Program for the Lake Tahoe Basin, 18 Ecology L.Q. 485, 505 (1991).

9
development.74 Furthermore, the TRPA had been unable to develop Environmental

Carrying Thresholds despite the Compact’s mandate. As a result California “withdrew

financial support and unilaterally imposed stricter regulations on the part of the Basin

located” within its boarders.75

By the end of 1980, California and Nevada “with the approval of Congress and

the President, adopted an extensive amendment to the compact ...”76 In addition to

structural and procedural changes, the amended Compact “directed the [TRPA] to

develop regional ‘environmental threshold carrying capacities’” and “adopt an amended

regional plan that achieves and maintains those carrying capacities.”77 Significantly, “for

the period prior to the adoption of the final plan ..., the Compact itself prohibited the

development of new subdivisions, condominiums, and apartment buildings ...”78 Shortly

thereafter the TRPA came to the realization that “it could not meet the deadlines in the

Compact” for establishing environmental threshold carrying capacities or a regional

plan.79 Subsequent attempts by TRPA to establish environmental threshold carrying

capacities were equally unsuccessful. Thus the first of two moratoria on development

was implemented which ultimately resulted in ban on building on certain capability

districts which lasted until 1987.80 This gave rise to Tahoe-Sierra Preservation Council,

Inc. v. Tahoe Regional Planning Agency81 (herein after Tahoe-Sierra v. TRPA), which

was decided by the United States Supreme Court on April 23, 2002.

74
Id.
75
Id.
76
Tahoe-Sierra Preservation Council, Inc. v. TRPA, 535 U.S. 302, 309 (2002).
77
Id. at 310.
78
Id.
79
Id.
80
Id.
81
535 U.S. 302 (2002).

10
 The plaintiff in Tahoe-Sierra v. TRPA, was the “Tahoe-Sierra Preservation

Council, Inc., a nonprofit membership corporation representing about 2,000 owners of

both improved and unimproved parcels of real estate in the Lake Tahoe Basin,”82 as well

as “a class of some 400 individual owners of vacant lots located on [Stream Environment

Zones] or in other parts of districts one, two, or three.”83 According to the Bailey system,

these capability districts were those with the highest potential for relative erosion hazard,

runoff, encroachment on Stream Environment Zones, impact on the watershed, and

inability to revegetate.84

Tahoe-Sierra “sought to recover compensation for their inability to make

economically viable use of their land for six years, during the time TRPA was attempting

to develop an understanding of the area’s natural processes and the different ways human

presence and development affected those processes.”85 Tahoe-Sierra relied on First

Evangelical Lutheran Church of Glendale v. County of Los Angeles86, which “...

concerned the question whether compensation is an appropriate remedy for a temporary

taking, not whether or when such a taking has occurred[,]”87 and; Lucas v. South

Carolina Coastal Commission,88 which “applie[s] to the relatively rare case in which a

regulation permanently denies all productive use of an entire parcel ...”89, in an effort “to

argue for a categorical rule that whenever the government imposes a deprivation of all

economically viable use of property, no matter how brief, it effects a taking.”90

82
Id. at 312.
83
Id.
84
www.trpa.org; other factors such as the need for “water quality improvements in the vicinity,” and
“distance from Lake Tahoe” were also taken into consideration.
85
Patten, Will Regulations Keep Tahoe Blue?, 27 T. Jefferson L. Rev. 187, 209 (2004).
86
482 U.S. 304
87
Tahoe-Sierra Preservation Council, Inc. v. TRPA, 535 U.S. 302 (2002).
88
505 U.S. 1033
89
Id.
90
Id. at 303.

11
Ultimately the United States Supreme Court disagreed with Tahoe-Sierra stating that

“[a]nything less than a ‘complete elimination of value,’ or a ‘total loss’ ... would require

the kind of analysis applied in Penn Central. 91 However, since Tahoe-Sierra “did not ...

challenge the District Court’s findings or conclusions concerning its application of Penn

Central,” a takings argument based on Penn Central was not considered by the Court.92

While the victory was won by a narrow margin (6-3), some have concluded that “[t]he

decision effectively encourages planning agencies to enforce environmental goals

through regulations of private land use by making moderately restrictive environmental

regulations economically efficient.”93

While arguably an effective planning tool, the moratoria may have also served to

further divide those living in the basin; an unfortunate effect the TRPA has had

throughout its history. Both sides of the debate have voiced this notion:

“[e]nvironmentalists claim the [TRPA] has been languid in its implementation of its

mandate ...,”94 while [d]evelopers, on the other hand, accuse the agency of arbitrariness,

inefficiency, and ineffectiveness.”95

Challenges and Potential Solutions

The TRPA is certainly a major player in management of the Basin. As such, the

TRPA has been at the center “of much of the inter-organizational conflict in the basin.”96

By no means, however, is it alone in the task of preserving, managing, and regulating the

Lake Tahoe Basin. This is clear when one considers the bi-state location of the Basin and

91
Id. at 330.
92
Id. at 317.
93
Patten, Will Regulations Keep Tahoe Blue?, 27 T. Jefferson L. Rev. 187, 211 - 212 (2004).
94
Mozee, Government Regulation of Ski Resort Development in the Lake Tahoe Region, 11 Stan. Envtl.
L.J. 68, 84 (1992).
95
Id.
96
Imperial, Kauneckis, Watershed Governance in Lake Tahoe, at 1010 (2003).

12
the break-down of land ownership within: approximately 77 percent of the land in the

Lake Tahoe Basin is managed by the Federal Government, namely the United States

Department of Agriculture Forest Service (USDA/USFS); sixteen percent of the land is

privately owned, and; seven percent of the land is owned/managed by state and local

governments. 97 Further, in ascertaining the voices and actors in the management of the

Lake Tahoe Basin one must consider its economy which is based largely on tourism,

gaming, and winter sports. All of the aforementioned factors implicate no fewer than

seventeen governmental and nonprofit organizations, including: the TRPA; USDA/USFS;

state water quality agencies of both California and Nevada; California Department of

Transportation; Nevada Department of Transportation; California Tahoe Conservancy ;

local governments (a total of six from California and Nevada); The Gaming Alliance;

The League to Save Lake Tahoe; Tahoe-Sierra Preservation Council; Tahoe

Transportation and Water Quality Coalition, and; the Tahoe Research Group.98

Despite the involvement of all of the aforementioned entities “no one

governmental body has overall control of recreational land use planning and growth in

the Tahoe region.”99 The sheer number of players and diversity of interests involved

presents a major challenge in preserving what President Clinton called “national

treasure...”100

As previously mentioned nonpoint source pollution is the major contributor to the

degradation of the environmental quality of Lake Tahoe. In an effort to mitigate this

problem California, Nevada, and the Federal government have developed “The Lake

97
http://ceres.ca.gov/tcsf/PresidentialEvent/trans_key_players.html
98
Imperial, Kauneckis, Watershed Governance in Lake Tahoe, 1009, 1014 (2003).
99
Mozee, Governmental Regulation of Ski Resort Development in the Lake Tahoe Region, 11 Stan. Envtl.
L.J. 68, 71 (1992).
100
Tahoe-Sierra Preservation Council, Inc. v. TRPA, 535 U.S. 302, 307 (2002).

13
Tahoe Environmental Improvement Program (EIP) [which] is a one billion dollar

program consisting of capital improvement projects ...”101 The projects seek to “restore

the 63-sub watersheds in the Lake Tahoe Basin.”102 Included in this program are the

Pathway 2007 program, designed to determine the Lake Tahoe Total Maximum Daily

Load (TMDL), and; the TRPA Regional Plan.103

The TMDL standards being developed by Pathway 2007 are similar in some

respect to the environmental thresholds that have been developed by the TRPA. This

program, which was established by the Clean Water Act, has the goal of achieving and

sustaining a Secchi depth measurement of 97.4 feet.104 It seeks to do so by “identify[ing]

existing sources of pollutants and the maximum amount that can be discharged if the

water is to continue providing its beneficial uses.”105 The Clean Water Act assigns

“[w]aters of the United States ... beneficial uses – such as drinking water supply, water

contact recreation, or aquatic life support – according to the beneficial use that these

waters are used by people animals and the environment.”106 One beneficial use that has

been identified in this situation is the “aesthetic enjoyment of Lake Tahoe clarity.”107

The TMDL are being developed by the Nevada Department of Environmental

Protection and the Lahontan Regional Water Quality Control Board.108 Currently, it is

estimated “that an approximate 25-percent reduction of current inputs [of fine particles,

101
UC Davis Research Group, Changes in Water Clarity at Lake Tahoe, June 2000.
102
www.tahoebmp.org
103
www.waterboards.ca.gov/lahontan/TMDL/Tahoe/docs/charting_course2clarity.pdf
104
www.trpa.org/default.aspx?tabindex=1&tabid=174
105
www.ndep.nv.gov/bwqp/file/tahoe_charting_course0917.pdf
106
Id.
107
www.trpa.org/default.aspx?tabindex=1&tabid=174
108
www.ndep.nv.gov/bwqp/tahoe.htm

14
nitrogen, and phosphorus] is needed to reverse the clarity decline, and significantly more

reduction of inputs is needed to improve clarity to the 97.4-foot goal.”109

The TRPA Regional Plan seeks to coordinate and regulate development in the

Basin and conserve its natural resources through the establishment and enforcement of

environmental carrying capacities or thresholds.110 Environmental thresholds “identify the

level of human impact the Lake Tahoe environment can take before irreparable damage

occurs.”111 The TRPA has identified “nine thresholds: water quality; air quality; scenic

resources; soil conservation; fish habitat; vegetation; wildlife habitat; noise, and;

recreation.”112

One way in which the TRPA has sought reduce nonpoint source pollution is the

establishment of Best Management Practices (BMPs). These “are methods to help

developed properties function more like natural undisturbed forest and meadowland.”113

Private “property owners are required by law to install BMPs at their own expense.”114

Failure to comply with BMPs results in fines of $1,000 for the first year of non-

compliance, $2,500 for the second year, and $4,000 for three years of non-compliance.115

Allegedly, the TRPA is contacting homeowners in “Priority One Watershed properties

that are past due on BMP installation, and properties that do not meet federal and local

water quality discharges.”116 In addition to retrofitting property, property owners are

109
Id.
110
www.trpa.org/default.aspx?tabindex=1&tabid=174
111
www.ndep.nv.gov/bwqp/file/tahoe_charting_course0917.pdf
112
www.trpa.org/default.aspx?tabindex=1&tabid=174
113
www.tahoebmp.org
114
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
January 2007 (University of California and University of Nevada Cooperative Extention).
115
Fact Sheet: Enforcement of Best Management Practices Retrofit Program at
http://tahoebmp.org/bmp_pdfs/BMP_Enforcement_Program.pdf
116
Id.

15
required to disclose BMP status to buyers before property ownership can be

transferred.117

According to the TRPA, the “BMP Retrofit program represents the primary

private sector contribution to the EIP program.”118 Common remedies “for residential

properties usually fall into the following categories: vegetating and mulching bare,

disturbed soils; infiltrating storm water runoff from impervious surfaces; paving dirt

driveways and roads; and stabilizing or retaining steep slopes and loose soils.”119

TPRA’s “Erosion Control Team” estimates that the cost to implement BMPs for a

“single-family dwelling [is] typically ... between $500 and $3500.”120 With

approximately 40,000 properties in the Basin that are required to be retrofitted with

BMPs the total cost of the program is estimated, by the TRPA, at $90 million.121 Others

estimate “that comprehensive erosion control at Tahoe could cost on the order of

hundreds of millions of dollars to implement ...”122

While “Basin-wide implementation of BMPs is expected to ‘significantly reduce

nutrient loads from surface runoff”123 the program is far from being completed.

According to one count “[a]pproximately 7,000 of 40,000 properties have implemented

BMPs to reduce erosion and pollution runoff.”124 From an implementation standpoint the

BMP program has been a failure when one considers ‘[t]he deadline for project

117
Id.
118
www.tahoebmp.org
119
Id.
120
Id.
121
Id.
122
www.trg.ucdavis.edu/research/changes2.html
123
www.tahoebmp.org
124
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
January 2007 (University of California and University of Nevada Cooperative Extention).

16
completion is the end of 2008.”125 Many believe the retrofitting process will require a

minimum of five additional years to complete.126

Attempts to mitigate the damage to Lake Tahoe caused by nonpoint source

pollution are not limited to private property in the Basin. The USFS’s efforts to improve

environmental quality in the Basin include “hazardous fuels reduction projects,

decommissioning un-needed forest roads, erosion control projects, as well as stream,

wetland and watershed restoration projects throughout the National Forest Lands of the

basin.”127 Decommissioning unused forest roads and improving others will have a

positive effect on the water quality in the Basin. According to the USFS, [t]he number

one cause of [nonpoint source pollution] in the forests, far and above everything else, are

the road systems ...”128 This is because “roads constructed before the mid-1980s were

often built too close to streams, without road surfacing, such as pavement or gravel, and

with slopes that send water down the adjacent unprotected hillside and into gullies that

carry water and sediment, directly into forest streams.”129 The key to limiting this source

of nonpoint source pollution “is to hydrologically disconnect road systems from stream

channels.”130 Despite the fact that current road construction methods prevent less

sediment from entering the watershed there is “still a tremendous impact [on the

environment].”131 The Environmental Protection Information Center, a grass-roots

nonprofit organization, “is advocating for forest management policies that base road

125
Id.
126
Id.
127
www.lteec.org/news.php?newsID=70
128
California Runnoff Rundown, A Newsletter of the Water Education Foundation, 6 (Fall 2006).
129
Id.
130
Id. at 7.
131
Id.

17
building and maintenance plans on quantifiable parameters of how many miles of road a

watershed can handle before it becomes impaired.”132

On Nevada state lands the Nevada Resource Team is taking measures to improve

the clarity and health of Lake Tahoe. This team “includes representatives from Division

of Forestry, Division of State Parks, Division of State Lands, and department of

Wildlife ...”; it is “working to restore forest health on more than 7000 acres of

parkland.”133

On the California side of the Basin, “the California Tahoe Conservancy, Caltrans,

and the California Department of Parks and Recreation ...” are working together “to

improve water quality, enhance wildlife habitat, and enhance public access ...”134 The

California Tahoe Conservancy is taking a different approach from many other entities in

the Basin.

The Conservancy is under the control of the California Resources Agency,135 and

“is governed by a board of seven voting members, appointed by state and local

officials.”136 The Conservancy does employ tactics that mitigate erosion and runoff.

However, the California Tahoe Conservancy’s main goal is the acquisition and if

necessary, restoration of “environmentally sensitive land” in the Basin.137 The program

began in 1985 by “identify[ing] between 6,000 and 7,000 undeveloped parcels as

environmentally sensitive, out of a total of 15,000 privately-owned undeveloped parcels

132
Id.
133
www.lteec.org/news.php?newsID=70
134
Id.
135
http://www.ca.gov/About/Government/agencyindex.html#agency-R
136
Fink, Structuring a Program for the Lake Tahoe Basin, 18 Ecology L.Q. 485, 526 - 527 (1991)
137
www.tahoecons.ca.gov/programs/esl/prg_esl.html

18
on the California side of the basin.”138 The Conservancy’s program of land acquisition

has been divided into three different categories:

First, in order to protect the natural environment, it purchases

environmentally sensitive land and land necessary to control erosion, and
procures land coverage in connection with the impervious coverage
regulations of the TRPA’s Regional Plan ... these efforts focus primarily
on acquisitions that will protect water quality by preventing development
or further damage to sensitive lands, controlling erosion and mitigating
excess land coverage, and transferring development potential from
relatively more sensitive to less sensitive parcels. The Conservancy’s
second program acquires land directly and awards monetary grants to
other entities for public access and recreation purposes, and third acquires
land to enhance wildlife habitat in the basin.139

To date, the Conservancy has spent “more than $69.4 million for the acquisition

of more than 4950 parcels totaling about 5950 acres.”140 One of the areas purchased by

the Conservancy is a portion of Pope Marsh which was largely destroyed by the Tahoe

Keys development in the 1960s. Unfortunately, “[d]espite effort by the California Tahoe

Conservancy to restore a small portion of this development the result has been a

permanent and irretrievable loss of this crucial habitat.”141

According to some experts, wildland fires in the Basin pose the greatest and most

immediate threat to water clarity.142 Wildland fire is a real threat to water quality in the

Lake Tahoe Basin. Throughout the western United States, “historic fire suppression,

massive clear cuts at the turn of the century, and global warming has created forests that

are ripe for catastrophic fire.”143 This holds particularly true for the Basin; the clear

cutting of timber to support the mining industry coupled with over 75 years of active fire

138
Id.
139
Fink, Structuring a Program for the Lake Tahoe Basin, 18 Ecology L.Q. 485, 527 (1991)
140
Id.
141
www.trg.ucdavis.edu/research/changes2.html
142
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
11(January 2007) (University of California and University of Nevada Cooperative Extention).
143
California Runnoff Rundown, A Newsletter of the Water Education Foundation, 3 (Fall 2006

19
suppression has “resulted in an overall young forest.”144 The young state of the forest

makes it susceptible to severe burning which would likely cause “high rates of [tree]

mortality.”145

In the summer of 2002, the “Gondola Fire” ignited (by a cigarette) on land

operated by Heavenly Resort. Before it was contained it grew to approximately 700

acres, which made it “the largest fire in the Tahoe Basin in over 80 years.”146 The fire

“consumed ... 9 of 16 plots that had been previously established for a prescribed

fire/mechanical treatment study.”147 Results indicate that “the most significant short-term

effects of the [Gondola Fire] were increases in the soil concentrations and/or leaching of

mineral forms of [nitrogen, sulfur, and phosphorous].”148 Furthermore, the study stated

that “... increases in [nitrogen and phosphorous] mobility could have significant impacts

on the water quality in Lake Tahoe.”149 However, 2005 study “found that prescribed fire

in the Lake Tahoe Basin had no effect on soluble reactive phosphate and minimal effects

on nitrate in stream waters.”150 This indicates that smaller, prescribed fires can be used as

an effective management tool without threatening the water quality of the Lake.

The Gondola Fire provided residents of the Basin a preview of the tinder box like

conditions. In June 2007, the Angora Fire was ignited by human cause on the southwest

shore of Lake Tahoe. This fire dwarfed previous incidents in the Basin. It burned over

3100 acres; destroyed 254 residences and 75 commercial structures, and; damaged 35

144
Initial Statement of Reasons, Lake Tahoe Region Exemption, 2006, Title 14 of the California Code of
Regulations (14 CCR).
145
Id.
146
http://www.fs.fed.us/r5/ltbmu/news/2005/07/12-be-fire-safe.shtml
147
Id.
148
Id.
149
Id.
150
Murphy, et al. Wildfire Effects on Soil Nutrients and Leaching in a Tahoe Basin Watershed (2006) at
www.jeq.scijournals.org/cgi/content/full/35/2/479.

20
residences.151 The cost of suppression was calculated at $12.1 million.152 This amount

does not take into account the destruction of public property or the cost to mitigate the

damage the fire has caused to the environment. Unfortunately this will not be the last

major fire in the Basin; the question is when, not if another conflagration ignites in the

Basin.

In fact, “[a] substantial portion of the Lake Tahoe Basin has been categorized as a

high-risk environment for catastrophic wildfire.”153 A study of “58 forest plots [in the

Basin] showed that ignitions in 76% of these plots would result in destructive crown

fires.”154 Crown fires occur, as the name suggests, when the fire reaches the upper

canopy of the forest; when this happens the fire moves “through the crowns of trees or

shrubs more or less independent of the surface fire.”155 This fuel arrangement allows

crown fires to burn at a particularly fast rate making it the most dangerous type of

wildfire.156

Erosion “accelerated by the fire’s destruction of vegetation that holds soils in

place ...” is a major problem associated with wildfires.157 This is because “[s]torm water

runoff from burned forested areas contains high concentrations of manganese, lead,

phosphorous, mercury, total organic carbon and uranium.”158 This is in addition to the

large amount of sediment that is carried into streams and ultimately the Lake. A Burned-

Area Report of the Angora fire shows that the 3100-acre area has “erosion potential” of

151
http://cdfdata.fire.ca.gov/incidents/incidents_details_info?incident_id=184
152
Burned-Area Report, FSH 2509.13 USDA Forest Service (7/11/2007 Final).
153
Murphy, et al. Wildfire Effects on Soil Nutrients and Leaching in a Tahoe Basin Watershed (2006) at
www.jeq.scijournals.org/cgi/content/full/35/2/479.
154
Id.
155
http://www.pbs.org/wgbh/nova/fire/glossary.html
156
http://www.forestera.nau.edu/data_derived.htm
157
Erosion From Tahoe Fire May Hurt Lake’s Health, at www.csmonitor.com/2007/0705/p02s01-
usgn.html?page=1
158
California Runnoff Rundown, A Newsletter of the Water Education Foundation, 3 (Fall 2006).

21
10 – 34 tons per acre, and; the potential to deposit 6400 – 21,760 cubic yards of sediment

for every square mile burned into the watershed.159 Even though “during firefighting

effort[s], trenches known as water bars [are] dug to manage runoff,” in large burn areas,

especially after significant precipitation, the mitigating effect is minimal.160

Because“[t]he effects of fire on water quality are especially important in the Lake

Tahoe Basin ...,”161 BMPs include guidelines for defensible space. Defensible space is a

zone around property that buffers it from fire. It is accomplished by removing dead trees

and brush, trimming or removing vegetation that touches structures, and breaking up

dense vegetation.162 The fire protection districts in the Basin recommend that property
163
owners keep at least a thirty foot “green zone” around property. Despite the

availability on material focused on educating homeowner of the importance of

maintaining defensible space and the willingness of fire agencies to provide free

assessments only “70 percent of homes [have] inadequate defensible space.”164

While fuel reduction programs are an extremely important part of Basin

management, there are barriers to implementation, which include: “strict regulations in

SEZs, a lack of mechanical contractors, lack of public acceptance of prescribed burning

and conventional harvest systems, the short field season and limited operational periods,

as well as air quality regulations.”165 Diminished air quality caused by prescribed burns

159
Burned-Area Report FSH 2509, USDA Forest Service (7/11/2007 Final).
160
Erosion From Tahoe Fire May Hurt Lake’s Health, at www.csmonitor.com/2007/0705/p02s01-
usgn.html?page=1
161
Id.
162
http://www.trpa.org/default.aspx?tabid=120
163
Id.
164
Lake Tahoe Basin Multi-Jurisdictional Fuel Reduction Plan, at
http://www.fs.fed.us/r5/ltbmu/documents/fuel-reduction-projects/10-year-
plan/LTBCFP_Public_Presentation_8_3.pdf
165
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
11 (January 2007) (University of California and University of Nevada Cooperative Extention).

22
affects not only the aesthetics of the Basin, “it contributes to the cumulative impacts

causing global climate change.”166

Global warming from greenhouse gas emissions will cause fuels to become drier,

likely resulting in longer and more intense fire seasons. The California Department of

Water Resources studies predict that temperature increases will cause the snowline to

retreat “by about 500 feet for every degree Celsius ... and change mountain watershed

runoff patterns.”167 Considering that “NOAA climate models now predict a 2-degree

increase in the next 25 years ...” the effect could be devastating not only on ecosystems in

the Basin but also the economy.168

The Angora Fire, and continuing requests from fire agencies within the Basin, has

caused the TRPA to change its policies regarding tree removal and removal of vegetation

in SEZs. This fire may have also caused many residents to change their views of the

importance of defensible space and fuels management programs (including prescribed

burns.

Conclusion

The future of Lake Tahoe depends on the continued efforts of those, both within

and without the Basin, who have worked so diligently to preserve its environmental

health. However, more people are needed to fund and participate in existing

organizations. One way that this is being accomplished is through “place-based

learning.”169 Place-based learning “is a teaching and learning process that uses the local

166
Id. at 15.
167
DWR News – People, 6 (Fall 2005) at http://www.publicaffairs.water.ca.gov/dwrnewsletter/news-
people/News-People-fall05.pdf
168
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
11(January 2007) (University of California and University of Nevada Cooperative Extention).
169
Id.

23
environment and community as the context for learning.”170 In addition to using the local

setting for context, it “promotes youth citizenship through participation in community

monitoring and restoration projects.”171 The Lake Tahoe Environmental Education

Coalition (LTEEC) is one organization that is involved in this philosophy of teaching.

The LTEEC was organized by the University of Nevada Cooperative Extension

and the University of California Cooperative Extension.172 The program was put

together, in part, because “the participants agreed that too many separate organizations

are trying to reach out to the public with very little organization.”173 In order to

coordinate education and environmental efforts at Lake Tahoe, LTEEC has organized

itself into eight working groups; each has its individual task but all are working toward a

common goal.174 The working groups are divided in the following manner: Home

Landscaping and Backyard Conservation; Volunteer Center; Citizens Restoration; K-12

Watershed Education; Higher Education and Research; Business and Tourism; Citizen

Monitoring, and; Forest Health and Fire Prevention.175

Planning and environmental education and protection is increasingly important

when one considers the explosive population growth in not only the Lake Tahoe Basin,

but the entire state. In 2006, Nevada was the second fastest growing state, by population,

in the nation.176 This is a trend that is expected to continue well into the future.

According to the United States Census Bureau, the population of Nevada is expected to

170
Place-Based Service-Learning Reference for the Lake Tahoe Basin and Truckee River Watershed at
http://www.4swep.org/resources/pbsl/PBSL/index.html
171
Kocher, Cobourn, Natural Resources Issues in the Lake Tahoe Basin: An Extension Needs Assessment,
11(January 2007) (University of California and University of Nevada Cooperative Extention).
172
http://www.lteec.org/about.php
173
Id.
174
Id.
175
Id.
176
http://www.census.gov/Press-Release/www/releases/archives/population/007910.html

24
grow to over four million people by 2030. From the period between April 2000 and July

2006, the population of Nevada grew by more than twenty-four percent.177 Undoubtedly,

this is having an impact on the environment; threatening wild places and straining already

limited water supplies. Already, both open space is at a premium and continues to

disappear at a disheartening pace.

177
http://quickfacts.census.gov/qfd/states/32000.html

25