Recorded: December 2010
Earthjustice staffer Jessica Knoblauch talks with Michael Donahoe, the former conservation co-chair of the Tahoe Area Sierra Club.
Earthjustice partnered with the Sierra Club to score a court victory that will greatly affect current and future development along Tahoe's lakeshore.
Michael Donahoe: I learned to water-ski on this lake 55 years ago. The lake was so pristine. We'd ski along the west shore of the lake. It was a glassy, beautiful, blue lake. You could see over a hundred feet down into the lake and the boulders that were 100 feet down there, they looked like you could reach out and touch them. The water was so clear. That got me started coming up here, and I've been coming up here ever since. I honeymooned here and bought a condo here in 1989 and have been here ever since.
Jessica: Okay, so you have a pretty long history then, it's safe to say? [laughs]
Michael: One of things that got me involved in the lake, I was doing a lot of consulting with land managers, and we were consulting with the Forest Service and BLM [Bureau of Land Management]. So we would be trying to help organizations be more effective in saving the land and protecting the resource just in general. Then when we decided to move our business to Tahoe, I decided to get trained as a stream keeper. Two of the people that were in the workshop were two teachers from Kingsbury Middle School, and so I got to working with them on taking the 5th and 6th graders out to take care of Burt Creek, which is about a half of a mile from my house. So we’d measure velocity and pH and dissolved oxygen and look at the macro invertebrates and turbidity and the kids just loved it. We raised trout from eggs and planted them in the stream. They were becoming stewards of the creek. Also, stewards of the lake. What got me involved was one day a sign showed up along Burt Creek that said we’re going to put in a subdivision here. And so the kids were incensed that this was going to happen and that opened my eyes to, hey, this is going on all around the basin. Everybody thinks Tahoe is this regulated place where you can’t do anything. That was true 20 years. That's no longer true. It's a myth now. The great myth of Tahoe is that it’s very difficult to build here and that it's overregulated. And that is just the opposite. And that's why what Earthjustice did is so important in helping the Sierra Club and the League [To Save Lake Tahoe] with that litigation, preventing more piers and buoys from being built on the lake without first making sure that we’re meeting thresholds. I can’t tell you how important that Earthjustice intervention is for saving Lake Tahoe. We were on a downward spiral and hopefully this will turn that around.
Jessica: Well, thank you. That's very nice to hear. Does it sound like Lake Tahoe is becoming more of a private venture, private developers are trying to come in rather than it be a public resource for everyone?
Michael: One of the questions that got answered by this lawsuit is, who owns Lake Tahoe? I think that the general public owns the lake, that the 300 plus million citizens of this country and the rest of the world own Lake Tahoe. It’s a public resource. But the private property owners and the lakefront property owners, many of them would say, "No, we have a right to stick piers out and put buoys out on that lake and interfere with the general public’s ability to enjoy this magnificent lake of ours." So the Tahoe Regional Planning Agency [TRPA] said, "Yeah, we’re going along with you on that. We’ll let you build some more piers and lots more buoys." And, we were scratching our heads.
I live right on the edge of the forest. It’s similar to me being able to take my deck and extend it out onto forest land. I don’t think anybody would think that would be okay [laughing], but people are saying it’s okay to poke a pier out there into the lake and make it harder for the kayakers and the swimmers and the fishermen to enjoy the lake. Most people don’t engage in those sports, but everybody likes to walk along the shore. And you walk along the shore now and you come across piers blocking your path. There’s no way over it or around it and in fact there’s a sign on it saying “no trespassing." So people would get intimidated. People, through public trust law, especially in California, have a right to use the beach and the waters. But that was being interfered with. So this lawsuit says, "Hey, no. This is not a private lake."
The reason I got involved in the shorezone piece was, I would have a Sierra Club table at the farmers’ market and people would come from other countries and from all around this country and say, "This is such a beautiful lake. What's going on. What are some of the issues?" I would say, "Well, they’re thinking of putting more piers and buoys around the lake" And they were just flabbergasted. They couldn’t understand the mentality here that such a natural resource could be privatized like that. And so I put together a little postcard survey and got over 2,000 people to mail that into TRPA. The choices were: no more private piers; it's okay for up to ten public piers; 440 piers are okay; 220, 120 are okay. They could choose and check off their preference. Over 2000 people did that and sent that into TRPA and there were only 95 people who wanted any more piers at all. It's amazing and TRPA ignored that because we were into the era of trash the regulators and dismantle regulations. And that kind of culture seeped down into Tahoe and had an impact here so people started talking about how we can’t get anywhere by regulating. So the whole emphasis is [TRPA] not doing the job that it was set up to do.
So that’s the other question that this lawsuit answered and that is, "What is TRPA’s role?" And the judge just very clearly came out and said, "Your role is to achieve the environmental standards, which we call thresholds up here, and maintain them. And the judge just put it out there and said, "You're not understanding your role correctly. You have to get back to basics and do what your original constitution was set up for and what it says." That’s so core. That’s a game changer.
Jessica: Well, it sounds like the planning agency is just interested in private development. Is that to bring in more tax dollars? What's their interest? [laughing]
Michael: The fees that they charge do go to TRPA. You've got to pay TRPA's administrative costs. If you go in for a permit, there's a charge to you as a contractor. And those fees can be substantial and without those fees … TRPA has gotten used to those fees. They call them mitigation fees. We’ve been maintaining for years that you mitigate first and then you build. But what they've been doing is building first and then implementing the mitigation after that. So that the very project that I built ten years ago now is needing more help and so we say, "Well, we’ll permit another project that will include some more mitigation to take care of that past problem."
Jessica: So it's kind of one step forward and two steps back because you have to keep building in order to mitigate?
Michael: Exactly. It’s a failed strategy. It’s kind of like going to Caltrans [California Department of Transportation] and I'll say, "Look, I’ll remove the graffiti on the 35th avenue overpass if you let me put graffiti on the 1st street overpass." It doesn’t make any sense if you really look at it. But they got caught up in this mentality.
They are convinced that the only way to get out of this problem is to build their way out of it and the other way to get out of it is to attract private money to pay for the improvements that we need. There is some truth to that, and if they focused just on redevelopment and did not disturb raw land we’d be very close to agreeing with them as long as they truly put something in that was good for the lake. But as soon as they start building on raw land, raw land is the filter that for millennia has kept the lake clear and kept the runoff from getting into it. It soaks it up before it runs off the property. But as soon as you build on any property, then the runoff starts and then you get all the superfine particles and the phosphorus and the nitrates that get into the lake.
Jessica: So there must be a way to develop Lake Tahoe sustainably. What does that look like?
Michael: What I just talked about is a key piece of that, that we focus on the redevelopment. There is plenty of areas full of blight, but it is not as profitable to work in blighted areas. You have to tear down what’s there and then rebuild. If you have just an empty lot or a number of acres of forested land, you just cut off the trees and it’s less costly.
The thresholds that are up here, the full name of them is threshold carrying capacities, they have not set capacity standards for much of the lake. We don't know how many visitors a day we can handle. We don't know how many people can live here sustainably. We don't know how many boat trips a year are sustainable. How can we think of sustainable without the context of the air and water quality and wildlife capacity and all those other pieces? We don't quantify those and we haven't quantified most of those here at Tahoe so when we talk about sustainability we don't have a baseline to work from. But until we understand and identify what the overall carrying capacity of the lake is and this region is, it's loosey goosey and the governing board and staff of TRPA are subject to pressure. Their standard for approving projects is called FONSI—finding of no significant impact. If you can show your project won’t significantly negatively impact the lake, then they can go ahead and approve it.
Jessica: But if there’s no baseline, how do you say that there's no impact?
Michael: That’s why the consultants have made tons of money up here. They have three steps: Is this going to hurt anything? Nope. Is this going to hurt air quality? Nope. Is this going to hurt water quality? Well, maybe, but we can handle/mitigate that. So that’s where the Sierra Club and the League To Save Lake Tahoe said, "No, wait a minute. You need to verify that and you need to do an EA, an environmental assessment. Or if it’s really a serious project, you have to do an EIS, an environmental impact statement. So in terms of sustainability, if we get that baseline in place, then we can start making decisions that are built on that. That's why the judge’s opinion, and not his opinion but his judgment, is so important because Judge Carlton is very clearly stating that threshold accomplishment has to be at the core of any changes you make. It raises the bar. You can no longer use the FONSI approach. You have to use what I call a FOSI approach, a finding of significant improvement. That’s huge. That has the potential of saving Lake Tahoe whereas before that potential had greatly diminished.
TRPA has a number of projects right now in the pipeline that they want to approve that have some benefits to them, but they have some negatives too. And they might help with water quality, but hurt with air quality and traffic congestion. And so we’re constantly trying to look at those and hold up the mirror and say, "Hey, is this really going to help the lake or is this going to continue its degradation?"
Jessica: So it sounds like this ruling has impacts beyond future development plans.
Michael: Yeah, way beyond just the shorezone itself and the piers and buoys issue. It’s really important for that, but it really does answer that question about what TRPA’s role is. I was a guest speaker with one of the TRPA board members a number of years ago and one of the students asked what the role of the TRPA board member was. And he said, "Well, my role is to help people get their projects through TRPA." I about fell off my seat!
So TRPA doesn’t understand its role. The judge was spot on when he said that in his ruling.
Jessica: They don't even know their own charter, basically.
Michael: No! You see, it grew up out of a … TRPA got hated up here because they were very strict for a long time. And so people wouldn’t even mention they worked at TRPA. And so that just shifted the emphasis of TRPA. And TRPA thinks that they are some kind of economic incubator, that their job is to solve the economic problems in Tahoe that are really a reflection of the economic problems in the country. That's their job. So they been downplaying the regulations. They keep complaining, "Well, you're gonna destroy the area by taking a regulatory approach." And we're saying, "Nonsense!" You look at California now and you look at the greenhouse gas emissions regulations and the laws that have gone in. That may have had some negative economic consequences in the short term, but that has spurred all kinds of new development and new businesses and new approaches and some creativity. It’s been shown time and again, I think, that investors like a stable climate to work in and if you have regulations and they know what the regulations are they can accomplish what they need to accomplish.
Jessica: And meanwhile if we don't have any regulations in Lake Tahoe and too many people will come in, the resource itself will be depleted and then nobody will have Lake Tahoe.
Michael: Exactly. The long term economic picture of Tahoe is dependent on this lake. Some of the business leaders are catching onto that. Let's look at what we have here and what we have here is an amazing recreational resource. When I look back, getting to know some of the Washoe inhabitants here, who had been here for 10,000 years and maintained this clarity. They lived here only in the summer, and they treated the land and the lake very carefully and they maintained it. And they came here to recreate themselves after a hard winter. I think that seeing this as a healing center would be a powerful way to go. [Also], as a recreation center, especially muscle powered recreation. And I think some of that message is beginning to get out there.
Jessica: That's interesting. Well, and especially like you said, in California we've made an effort to preserve some of our beaches and a lot of our regional parks and forests. Thanks to that, tourism is huge here. People come to California to experience those things: the redwoods, the California beaches, etc. It sounds like the same thing in Lake Tahoe.
Michael: Yes, you're exactly right. Some of the beaches I wouldn’t take visitors to. Some are still pretty pristine, but we have much more algal growth than we used to. So we've got to get that cleaned up if we’re going to maintain the pristine nature of this lake.
Images of Lake Tahoe: Lake Tahoe's famed clarity has been clouded by increased human activity and urban development. A landmark legal victory brought about by Earthjustice and its clients is expected to help to keep the lake blue for generations to come. Learn about Lake Tahoe through a photo slideshow.