TheTahoeWeekly.com
Who owns the water from Lake Tahoe & Truckee River? P A R T
II
BY M A R K M c L AU G H L I N
W
ith public access boat ramps closed at Lake Tahoe due to low water levels and hydrologists forecasting that the lake will fall to its natural rim in October, it’s not surprising that people wonder why any of the 17 gates at Tahoe Dam are open, allowing precious water to flow into Truckee River. The outlet dam happens to be the most visible and obvious reason for controlling water levels at Big Blue, but as a practical matter, most of the water is lost through evaporation each year, far more than gets discharged through the gates. Closing the dam would slow Tahoe’s water loss only slightly. Ultimately, the release is mandated by a complicated arrangement called the Truckee River Operating Agreement, which requires a minimum flow to Nevada based on cubic feet per second (cfs) as measured at Farad, about 3.5 miles from the Nevada state line (reported in every edition of Tahoe Weekly on our Sightseeing feature).
Lake Tahoe high-water level, circa 1915. In 1907, lake level reached 6,231.36’ and overtopped the outlet dam. | Courtesy Nevada Historical Society
Legal systems for water rights are managed by the states … and depending on the region of the United States and the availability of hydrological resources, states adopt one of three types of water law: riparian, prior appropriation or a hybrid of the two. The trouble started with construction of the Lake Tahoe Dam by Donner Lumber and Boom Co. in 1870. Water impounded in the Tahoe Basin for log fluming caused flooding along lake shorelines, land owned by wealthy and politically influential property owners. The Truckee River General Electric Company later acquired ownership to provide a steady, year-round water source for hydroelectric power plants along the river. Based on this seemingly reliable and inexpensive energy source, various entrepreneurs constructed processing and manufacturing plants along Truckee River west of Reno. To maintain a reliable flow, the power generation company enlarged the dam to increase water storage in the Tahoe Basin, drawing more heated protests from lakeshore owners complaining about soil erosion and the impact on their piers, boathouses and beaches. (Shoreline erosion due to enhanced water levels is still an environmental issue at Lake Tahoe since sediment loading into the lake introduces nutrients that feed algae, which reduces water clarity.)
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The stored water in Lake Tahoe would soon draw the attention of a visionary Nevadan. In the early 1870s, the Silver State’s economy was booming, but it was mostly based on silver and gold production from the Comstock mines. The economic love affair that politicians, bankers, merchants and businessmen had with hard-rock mining was ultimately fleeting. Over time, the lucrative veins of rich ore are depleted. There was one man, however, who dreamed of a state populated by honest, God-fearing homesteaders, rather than the transient, debased and rowdy crowd that inhabited brazen mining camps such as Virginia City and Gold Hill. Robert L. Fulton, a moralist and former land agent for the Central Pacific Railroad, envisioned fertile farmlands, cattle ranches, orchards and even vineyards blossoming in the desert landscape, all nourished by water from Lake Tahoe and the Sierra Nevada. Fulton would later become known as the “father of the irrigation movement in Nevada.” By 1877, Fulton had sketched out a plan to divert water from the Truckee River to the 73-square-mile Long Valley north of Reno. The project wasn’t built, but it represented one of the first efforts to harness the Lake Tahoe watershed for largescale development in western Nevada. In 1872, Henry Orr had built a dam on the Truckee River to divert water into a canal, or ditch as they are called in Nevada, that ran 2 miles to his ranch east of presentday Reno. The following year a group of farmers bought Orr’s water rights and ran the Orr Ditch north to Spanish Springs to supply ranches to the north and east.
It may seem counterintuitive that Nevada could claim water resources from across the state line in California. After all, Tahoe Dam is in California and three-fifths of the lake itself lies within the Golden State. Donner Lake and Independence Lake, two important sources for the Truckee River, are also in California. The answer is rooted in Western water law. Legal systems for water rights are managed by the states, not the federal government, and depending on the region of the United States and the availability of hydrological resources, states adopt one of three types of water law: riparian, prior appropriation or a hybrid of the two. Under riparian doctrine, water rights belong to landowners whose parcel physically touches a river, pond or lake. A riparian landowner has a right to the water with a limit of “reasonable use.” This system is followed by states in the eastern third of the nation where the climate is wet and water is relatively abundant. Eight Intermountain West states, including Nevada, adopted the doctrine of prior appropriation. Prior appropriation is often described as “first in time, first in right,” meaning that the first person or entity to take a quantity of surface or groundwater and put it to beneficial use has a higher priority of right than a subsequent user based on the date of diversion. The stipulation beneficial use requires that the diverted water must produce economic gain, such as agriculture irrigation, hydroelectric power generation, mining, etc. Under drought conditions, the demands of higher priority users are satisfied before junior users receive water. For example, if the flow of the Truckee River is at only 70 percent
due to a dry winter, the senior rights holder will get all its water allotment first. The Pacific Coast states of Washington, Oregon and California embraced a hybrid system of riparian and prior appropriation rights. In 1885, Nevada adopted the prior appropriation doctrine with respect to the state’s administration of water rights. Another important tenet to this law, especially when it comes to bi-state river systems, is that proximity to a water source is no basis for a water right. These statutory principles conflicted with the common law doctrine of riparian rights in California regarding water shared between the two states, specifically Lake Tahoe and the Truckee, Carson and Walker rivers. The ratification of the prior appropriation doctrine enabled the Silver State to acquire senior rights to the Truckee River drainage. Since the right to use water in Nevada is appropriated by a permit and the first person or entity to divert the water has priority over those who come later, the state could claim “first in time” based on economic application of Truckee River water dating back to its original farms, ranches and sawmills in the 1860s, including the founding of Reno in 1868. That clause is essential to understanding how California lost its war with Nevada over control of Lake Tahoe. It was also the genesis of legal battles that would last for decades.
Read Part I at TheTahoeWeekly.com In 1878, Robert Fulton purchased the Reno Evening Gazette to project his enthusiasm for using Sierra water to irrigate Nevada and explain why its land should be put to a higher purpose than simply raising hay and grain to feed cattle as it had since its settlement by Mormons. This series continues in the next edition or is available at TheTahoeWeekly.com. Tahoe historian Mark McLaughlin is a nationally published author and professional speaker. His award-winning books are available at local stores or at thestormking.com. You may reach him at mark@thestormking.com.
