Federal Court Affirms Washington Must Fix Fish-blocking Culverts

A federal appeals court is upholding a U.S. district judge’s ruling that Washington needs to make hundreds of culverts more passable to salmon and steelhead across Pugetropolis.

The state is working on that already, including a project in Woodinville on Little Bear Creek that began this month, but hundreds more that make it tough for fish to access viable stream habitat remain.

THIS CULVERT CARRYING LITTLE BEAR CREEK UNDERNEATH HIGHWAY 202 IN WOODINVILLE HAS BEEN DEEMED TO NARROW AND FAST FOR FISH AND WILL BE REPLACED THIS YEAR. THE CREEK SEES ANNUAL RUNS OF SOCKEYE AND KOKANEE AND HOSTS TROUT, ACCORDING TO KING COUNTY SALMON WATCHER SURVEYS IN RECENT YEARS. (WSDOT)

THIS CULVERT CARRYING LITTLE BEAR CREEK UNDERNEATH HIGHWAY 202 IN WOODINVILLE HAS BEEN DEEMED TOO NARROW AND FAST FOR FISH AND WILL BE REPLACED THIS YEAR. THE CREEK SEES ANNUAL RUNS OF SOCKEYE AND KOKANEE AND HOSTS TROUT, ACCORDING TO KING COUNTY SALMON WATCHER SURVEYS IN RECENT YEARS. (WSDOT)

To fix the most important ones by the deadline of 2030 will require around $155 million a year, according to the Department of Transportation.

The legislature this past session funded $89 million for work over the next two years, according to the Kitsap Sun.

WDFW plans to have its incorrectly operating culverts fixed by the end of 2016.

So too does DNR, according to the Sun.

Monday’s affirmation by a three-judge panel of the 9th Circuit Court of Appeals upheld a 2013 district court ruling that is essentially a continuation of 1974’s Boldt Decision.

“We conclude that in building and maintaining barrier culverts Washington has violated, and continues to violate, its obligation to the tribes under the fishing clause of the (1854-5) treaties,” wrote  Circuit Judge William A. Fletcher. “The district court did not abuse its discretion in enjoining Washington to correct most of its high-priority barrier culverts within seventeen years, and to correct the remainder at the end of their natural life or in the course of a road construction project undertaken for independent reasons.”

A SCREEN SHOT OF A WSDOT MAP SHOWS THAT A FAIR NUMBER OF CULVERTS HAVE BEEN FIXED -- GREEN FISH SYMBOLS -- ACROSS PUGETROPOLIS, BUT ALSO THAT MANY MORE REMAIN. WSDOT HAS AROUND 1,000 IN THE AREA AFFECTED BY THE COURT RULING, WITH 800 THAT MAKE IT TOUGH FOR FISH TO ACCESS AROUND 1,000 STREAM MILES OF HABITAT. (WSDOT)

A SCREEN SHOT OF A WSDOT MAP SHOWS THAT A FAIR NUMBER OF CULVERTS HAVE BEEN FIXED — GREEN FISH SYMBOLS — ACROSS PUGETROPOLIS, BUT ALSO THAT MANY MORE REMAIN. WSDOT HAS AROUND 1,000 IN THE AREA AFFECTED BY THE COURT RULING, WITH 800 THAT MAKE IT TOUGH FOR FISH TO ACCESS AROUND 1,000 STREAM MILES OF HABITAT. (WSDOT)

Westside tribes were buoyed by the ruling as they said it extended treaty fishing rights to habitat protections.

“The ruling keeps the spotlight on salmon habitat, right where it belongs. Without good habitat, and access to that habitat, there can be no salmon recovery,” said Lorraine Loomis, chairwoman of the Northwest Indian Fisheries Commission. “Right now we are losing salmon habitat faster than it can be restored. While there is a financial cost to fixing the culverts, there is a much higher cost to be paid by future generations if we don’t.”

State officials say they’re reviewing the ruling with the Attorney General’s office.

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