Court Decision Creates Boon in Construction of Culverts - 997 of Them

The U.S. District Court recently ordered the State of Washington to fix or replace nearly 1000 fish culverts determining that existing culverts are blocking salmon from reaching important spawning grounds and are therefore infringing on tribes treaty-protected fishing rights.

The decision certainly expands the culvert construction market but it also further constrains tight transportation budgets.

In a recent meeting with AGC members in Olympia new WSDOT Secretary Lynn Peterson called the case the McCleary decision of transportation. McCleary is the State Supreme Court ruling that required the state to spend significantly more money on basic education. Peterson said WSDOT will have to repair or replace 817 culverts at a cost of more than $2.4 billion by 2030. That would be about $300 million per state biennium budget cycle -- a significant business opportunity should it actually get funded.

The court gave a much shorter timeline for fixing about 180 culverts on recreational lands. At an estimated cost of $55 million those repairs are to be completed by the Department of Natural Resources State Parks and Fish and Wildlife by October 31 2016.

As a practice WSDOT has been replacing culverts as state highways are widened or upgraded. In addition a stand-alone program to fix other culverts grew from $7.8 million in 2001 to $23 million in 2011 but there has never been a firm target date for fixing all the culverts. WSDOT may defer correction of culverts if no more than 10 percent of the salmon habitat is affected by the blocking culvert the judge said. Such culverts must be brought up to standard at the end of their useful life.

According to a paper prepared by AGC member law firm Lane Powell the tribes contended that their treaty right as interpreted by the courts to make a moderate living from fishing prohibits the state from maintaining culverts that restrict salmon access and reduce the numbers of fish available for tribal harvest and that the state’s culverts as currently designed built and operated violate that treaty right.

Judge Ricardo Martinez said that reducing the salmon harvests by tribal and non-tribal fishers will not result in substantial increases in salmon production unless accompanied by gains in habitat particularly spawning grounds. The court said “state-owned barrier culverts are so numerous and affect such a large area that they have a significant total impact on salmon production.” The court found that the total number of culverts that are classified as barriers to fish habitat has increased despite the efforts of WSDOT to correct some blockages. “Extrapolation from these data would lead to the untenable conclusion that under the current state approach the problem of WSDOT barrier culverts in the Case Area will never be solved.”

Peterson said that the state has not decided yet whether to appeal but its unlikely the entire decision would be reversed even if an appeal is successful.