Washington's Expensive Culvert Court Case

By Don C. Brunell

Editor’s Note: The U.S. Supreme Court announced Monday, after this column was written, that it had deadlocked 4-4 (with Justice Kennedy abstaining) on the Washington culvert case, and therefore the lower court ruling will stand.

While much of the media buzz over declining salmon runs focuses on dam removal and predation by sea lions and cormorants, the U.S. Supreme Court is asked to decide whether Washington State needs to spend an additional $2.4 billion to replace more road culverts.

In 2001, Western Washington Tribes sued claiming the state needed to remove culverts which block salmon migrating to spawning channels. The Ninth Circuit agreed with the Tribes and oral arguments were heard at the Supreme Court in April.

The state argues much of the culvert replacement is completed. In 2013, the state legislature added $300 million to the transportation budget to remove fish barriers. Washington’s State Department of Transportation (WSDOT) worked with the state’s Dept. of Fish and Wildlife to identify and repair problem culverts on over 7,000 miles of state highways.

Washington State Solicitor General Noah Purcell argued that the lower court rulings ignore the fact that the salmon harvests affected by the culverts have declined less than five percent. “We have to replace culverts when no salmon can reach them,” he said. “And that is an utter waste of public funds.”

Agriculture groups, such as the Washington Farm Bureau, support the state’s contention and believe, if the nation’s high court allows the decision to stand, “it will bolster lawsuits to remove dams, restrict irrigation and challenge anything else potentially harmful to fish,” the Capital Press website reported in April.

As part of the Forests and Fish Law, forest landowners in Washington — both private landowners and public forestland managers — have removed 7,300 fish passage barriers since 2001 across 9.3 million acres, Mark Doumit, executive director of the Washington Forest Protection Association, wrote recently in the Everett Herald.

These landowners have spent $313 million opening up 5,100 miles of fish habitat. Private and public forest landowners have completed 84 percent of their goals and are on track to clear all the fish passage barriers in forested streams by 2021.

Washington’s Attorney General Bob Ferguson appealed the 9th Circuit Court Order to upgrade more than 800 culverts by 2030. Former AG Rob McKenna submitted a brief on behalf of the Washington State Association of Counties and the Association of Washington of Cities. McKenna’s brief warns that letting the court order stand could force local governments spend money they don’t have.

Doumit, a former state legislator from Cathlamet, believes that collaboration is better than confrontation. “We sat at the table on an agreement that is paying dividends for the environment and keeping all the parties out of court.”

Washington forest landowners have fixed the thousands of culverts as part of the Forests & Fish Law, a historic agreement between federal, state, tribal and county governments and private forest landowners. All of the parties agreed on a set of forest practices that protect 60,000 miles of streams running through 9.3 million acres of state and private forestland.

There are many reasons for the decline in salmon runs, but improving water quality and fixing the tens of thousands of fish-blocking culverts in Washington are already part of the solution.

“While we have made a lot of progress in fixing fish passage barriers, we need to address all the major habitat factors affecting salmon. We have a shared responsibility to address the health of our salmon and waterways, and collaboration is the best way to ensure our success,” Doumit concluded. “Salmon are an integral part of Washington’s culture, spirit and identity. It is our collective responsibility to protect them.”

Unfortunately, today far too much money is spent in court where it should go to increasing the salmon population.

Don Brunell is a business analyst, writer and columnist. He recently retired as president of the Association of Washington Business, the state’s oldest and largest business organization, and now lives in Vancouver. He can be contacted at TheBrunells@msn.com.