Fixing culverts could save the orcas — but who will pay?

Following a U.S. Supreme Court decision, the Washington Legislature must find the funding to rebuild the salmon-blocking structures.

Old culverts are effective at moving water under state roads, but many are blocking spawning salmon from traveling upstream. (Courtesy of Washington Department of Fish and Wildlife)

OLYMPIA – Puget Sound’s beloved orcas are at risk of extinction. A historic population of roughly 200 has shrunk to 75. Now the state Legislature is getting involved, considering a battery of options to save the distinctively marked marine mammals.

A key to heading off extinction, scientists say, is improving the health of oceangoing runs of chinook salmon, the biggest, fattest and most nutritious kind of salmon and the killer whales’ main food source. 

To do that, some lawmakers would like to open up more than 1,000 miles of prime inland spawning areas that are currently blocked to the fish. Even those who would rather not are feeling the pressure to do so after an order from the highest court in the land told them they had to. But the Legislature is stuck, struggling to identify a source of funding for the project.

And what is blocking all those fish? Culverts. These are the pipes and tunnels that pass under roads throughout the state, allowing water to flow downstream. It turns out that many old highway projects in the state were poorly engineered where they intersect with salmon-bearing streams and, as a result, can block the fish in a variety of ways.

This year’s legislative session marks the first time lawmakers have met to adopt a state spending plan since the U.S. Supreme Court refused last year to hear the state's appeal of lower-court rulings in favor of more than 20 Indian tribes that sued the state over the faulty culverts. The court's action left the burden for fixing the culverts squarely in legislators’ laps, with no further appeals possible. State officials had resisted the tribal claims for nearly two decades. Now they have no other option but to fund a fix. 

Washington state transportation officials estimate upward of $3.1 billion more is needed to rectify past mistakes. That’s beyond the several hundred million dollars already spent or allocated for fish passage improvements since a 2013 federal court order in favor of the tribes. 

U.S. District Judge Ricardo Martinez had found that the state had a duty under treaties from the mid-1850s to repair or replace culverts, opening up roughly 1,000 miles of stream habitat for salmon runs by 2030. Tribes depend on the fish for both economic and cultural reasons. 

That order, which the Supreme Court let stand, requires the state to remove potentially more than 900 culverts on state properties by 2030 and more in later years. The state estimates it can meet Martinez's order to restore access to 90 percent of the blocked habitat by fixing about 415 fish-passage barriers. 

This is a familiar posture for legislators, who faced similar orders from the state’s high court in 2012 to fix school funding, which ultimately led to a contempt-of-court finding and fines.

But just as that solution took years to resolve, and is still not fully carried out, the culverts case has dragged on since tribes first turned to the courts in 2001. Meanwhile, the state Department of Transportation has been repairing or removing fish barriers since the 1990s. 

In what looked like a potentially major step forward, Gov. Jay Inslee in December proposed to spend more than $1 billion over the next two years on orca and salmon recovery, including ongoing commitments to improve Puget Sound water quality and fish habitat. 

Inslee's proposed budget included $275 million specifically targeted for culverts. Inslee's plan also provided long-term funds. Based on Department of Transportation estimates, the outlay could balloon to $726 million per two-year budget cycle in future years.

But while tribes hailed the effort to move forward and provide permanent sources of funds, the proposal to ramp up the pace of projects over a few years has tribes worried. They would like to see more money invested right away, with the hope of getting results – specifically better fish runs – sooner. 

“To delay necessary funding will only make it more difficult for the [s]tate to satisfy the requirements of the (court order) and fails to address in a timely fashion  the restoration of our rapidly declining salmon and orca resources in Washington ecosystems,” wrote Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, in a Jan. 31 letter to Inslee and legislative leaders. 

Loomis added that the issue is “critical not only to the treaty tribes, but also to all Washingtonians.'' 

The state’s progress has been slow. As of the end of 2018, the state said it had fixed 66 of the 992 faulty culverts at issue since 2013, or about 11 a year. In order to make the court-imposed deadline, that pace would have to pick up to about 84 fixes per year. 

New culvert
The state has been replacing faulty culverts, but not fast enough. (Courtesy of the Washington Department of Transportation)

But as state legislators move into the second half of their 105-day session, Inslee's proposal is going nowhere fast. And no clear politically palatable alternative is taking shape. The House Capital Budget Committee is scheduled to take up the issue Thursday.

It is increasingly likely that lawmakers will take a piecemeal approach. If that happens, it will be similar to the incremental funding they have provided in budget cycles since the injunction — going from about $27 million for stand-alone fish-passage projects in 2013-15 to $70 million in 2015-17 and closer to $109 million in 2017-19. All those numbers pale in comparison to Inslee’s proposal. 

Though minority Republicans oppose new taxes, the Inslee approach relies on exactly that. The Democratic governor proposed to change sales tax formulas for real estate, requiring a higher tax rate on high-end property transactions, such as commercial projects, and lower rates for less expensive ones valued at less than $250,000. Overall, that scheme could produce more than $200 million a year in added revenue. 

House Democrats have considered changing the tax rates on property sales in the past, and are proposing it again this year. But the Democrats are considering using that money to cover housing programs and other operations costs of government, not fixing culverts. 

The Senate may be more open to Inslee's idea. Senate Ways & Means Committee Chair Christine Rolfes, D-Bainbridge Island, said all funding ideas remain on the table as the Senate waits to see how the various ideas fare. 

Rolfes said it is possible that a solution to pay for orca recovery and culverts includes some money from all three of the state’s major budgets — the operating budget, the capital or construction budget, and transportation. 

There is one approach that would provide new permanent transportation funds for culverts and other road or transportation infrastructure projects. This is a carbon-tax and gas-tax bill pushed by Sen. Steve Hobbs, D-Lake Stevens, who chairs the Senate Transportation Committee. 

Hobbs’ plan, which includes controversial fees on new construction projects, specifically would cover culvert costs and pay for major highway projects such as a bridge over the Columbia River and new electrified ferries. 

Hobbs says he is open to amending Senate Bill 5971, which cleared its first big hurdle March 6. The legislation received approval on a largely party-line vote in the Transportation Committee and was sent to the Rules Committee, which determines if or when it can move to the full Senate floor for action. 

The measure has plenty of detractors. Republicans, including Sen. Curtis King of Yakima, are dead set against a carbon tax, saying it could increase fuel costs for motorists and truckers. 

Senate Republican Leader Mark Schoesler of Ritzville and other GOP members are quick to note that voters rejected a carbon tax in 2016 and 2018. Another sensitive point is that Washington's gas tax is second highest in the country at 49.4 cents per gallon, following a two-step increase of nearly 12 cents in 2015-16, and Hobbs is recommending another 6-cent increase.  

It's not like the state didn't see this train leaving the station 20 years ago — that they would potentially be on the hook for hundreds of millions of dollars.
— Brian Cladoosby, Swinomish Indian Tribal Community

However, unlike the failed ballot measures, Hobbs’ legislation uses carbon-tax proceeds for road and fish-habitat restoration, and the other proposals were not linked so directly to transportation. Transportation is the state's leading sector for greenhouse gas emissions linked to global warming, so Hobbs’ carbon-tax proposal has a logical tie-in to transportation. 

Still, the Hobbs approach isn't expected to go far because it is a pricey $15 billion plan, and it usually takes a few years to build the political support for that kind of initiative. 

Rep. Jake Fey, D-Tacoma and chair of the House Transportation Committee, thinks a gas tax increase is eventually a good approach that could help pay for culverts. But he thinks it is probably too soon to win support for the tax. 

Instead, Fey said lawmakers may need to look for a short-term answer to culverts funding and then take up a proposal to increase the gas tax in 2021. He said details of his approach will be clearer in late March, when he expects to release his two-year transportation budget proposal. 

But how much the state can raise by looking for short-term options is unclear. 

The Department of Transportation is seeking $275 million for the 2019-21 biennium because it believes that is a reasonable target for projects the agency could complete on that timeline, according to Megan White, director of the environmental services office for the DOT. 

Because current-law budgets contain about $89 million identified for culverts in the coming biennium, White said the actual new money in Inslee’s and the department's funding request is closer to $186 million. 

Fey is skeptical that DOT can do that many projects and said he does not want to raise taxes for culverts this year if there is a chance some of the money will end up idling in an account. 

But White said the agency has been ramping up since the 2013 court ruling. This year’s $275 million request is “based on what we thought we could do in the next biennium,'' White said. 

Kim Mueller, manager of DOT's fish-passage delivery program, said there are a few big projects that could add dozens of miles of important habitat, but which require new funds to go forward in the next biennium. 

The biggest is a set of four barrier removals in Kitsap County around State Route 3 and Chico Creek and a tributary. This $55 million project would remove the barriers and add a long bridge near an estuary, opening up or improving fish access to 21 miles of habitat, Mueller said. 

“That is the largest barrier project we've had to date,” Mueller said. 

The project would help the chinook, which are so important to orcas and other fish runs important to the Suquamish tribe, Mueller said. Other barriers have already been fixed both upstream and downstream of the project, she said. 

One other big project awaiting funds is between Port Angeles and Sequim, along U.S. 101 at Siebert Creek. The $20 million job would improve access for salmon to 34 miles of habitat. 

Top Republicans on the House Transportation Committee, led by Rep. Andrew Barkis of Thurston County and Rep. Jim Walsh of Grays Harbor County, are developing a counterproposal. Barkis and Walsh said in an interview they believe there is money available to shift in the transportation budget — or from other sources — to cover the short-term need. 

Details were still scarce last week, but Barkis and Walsh said their plan would give more authority to the Fish Barrier Removal Board, which funds projects for local governments and private interests. 

The lawmakers want to make sure funds are available for local governments to remove stream barriers for which they are responsible that are downstream or upstream of important state projects.  

Local governments are not subject at this point to the federal court order, but their culverts block streams just as the state’s culverts do. So the state Department of Fish and Wildlife has requested roughly $50 million over the next two years for about 82 of the fish-barrier board's projects, some off which would fix the local governments’ culverts. The agency says it could open more than 160 miles of habitat.  

Rolfes, the top Senate budget writer, thinks the state is already doing a good job of removing stream barriers in multiple jurisdictions along a single stream, but the senator said there may be better ideas to consider. 

Rolfes also said it is not unusual to still be searching for a solution to a problem like orca and salmon recovery at this point in a session. She said it is possible the Legislature will again take a more piecemeal approach to this budget challenge, rather than adopt a whole-hog approach, as embodied in Inslee’s proposal with real estate taxes and in Hobbs’ carbon-tax proposal. 

“That may be the approach this year. But I don't know,” she said. 

Brian Cladoosby, chairman of the Swinomish Indian Tribal Community, one of the tribes that sued the state, said lawmakers must get serious about the funding challenge. 

“It's not like the state didn't see this train leaving the station 20 years ago — that they would potentially be on the hook for hundreds of millions of dollars.” Cladoosby said. “The legislators better open their eyes to the fact that they are under the gun and that funding this is not an option for them. They have to take it serious and they have to start putting in the resources to make sure they abide by this [court] decision.'' 

Clearly, the clock is starting to tick a little louder for legislators. The Legislature's scheduled adjournment date is April 28, and Senate Majority Leader Andy Billig, D-Spokane, noted: “Culverts, it's a riddle we've got to solve.” 

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About the Authors & Contributors

Brad Shannon

Brad Shannon is an Olympia-based independent journalist covering the 2019 legislative session for InvestigateWest.