Editorial: No avoiding duty to restore salmon habitat

By The Herald Editorial Board

It’s not the news state officials wanted to hear: The state is indeed on the hook for about $2 billion in salmon habitat restoration — specifically replacement of culverts that have blocked salmon from reaching upstream spawning grounds — work that must be completed by 2030.

A panel of judges for the 9th U.S. Circuit Court of Appeals declined a request from Washington state to reconsider its decision from a year ago that ordered the state to replace about 800 culverts beneath state highways, affirming a 2013 lower court decision. The U.S. government, representing 21 tribes in Washington state, first sued the state in 2001, claiming the state’s placement of culverts violated tribal treaty rights because they stifled salmon runs.

The state argued that its treaties with the tribes didn’t obligate it to restore salmon habitat, but the appeals court disagreed.

“The Indians did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs,” 9th Circuit Court Judge William Fletcher wrote in the 2016 ruling.

In arguing for a reconsideration, the state said the decision would force it to spend billions on projects that won’t significantly improve fish habitat because other culverts — those under county, city and private roads upstream and downstream from state roads — would remain and would continue to block salmon.

But the responsibilities of others, public and private, don’t excuse the state from its duty to restore salmon habitat and honor the treaties that it and the tribes have lived under for more than 150 years. Moreover, the state should be setting the example for other governments and individuals who aren’t going to answer for their own obligations if the state won’t.

It will be costly. Culverts, typically concrete or metal pipes that carry streams under roads, block salmon because they are set at angles too deep or water rushes through them too quickly. A common fix requires culverts to be removed and bridges to be built over streams at a cost of millions of dollars.

A project to replace culverts and build bridges for the north- and southbound lanes of I-5 over Fisher Creek north of Stanwood, which is now nearing completion, will cost $8.8 million.

It’s work that the state Department of Transportation and local governments already are doing, but it may be at a pace too slow to save salmon. Among the exceptions has been the Tulalip Tribes, which removed culverts on its reservation following a 2005 study by the Everett-based Adopt-A-Stream Foundation.

The Northwest Indian Fisheries Commission, in a 2016 report, found that the state had replaced 76 culverts since the 2013 ruling, but at its current rate of replacement it would take 44 years to replace the 800 culverts it is responsible for.

Gov. Jay Inslee’s proposed budget outlined only $700 million over the next 16 years to replace culverts. Estimates for the work have spanned $1.9 billion to $2.4 billion.

With the state’s habitat restoration now ordered by the courts, it adds more weight to the realization that the Legislature cannot resolve the K-12 public school funding crisis, the demands of fixing its mental health system and meet its social service and other responsibilities without agreeing to new sources of revenue. Closing tax loopholes isn’t going to do the job.

And counties and cities should recognize that they are next in the line of responsibility. Some already do.

“It’s not a great leap of legal logic to start with the state and move on to the counties,” Dave Somers, then a Snohomish County Council member, told The Herald in 2013. “Potentially down the road, it’s a hugely expensive thing.”

The county, like the state, is replacing or repairing culverts as it moves ahead with other road projects. It made eight such replacements in 2016. As county executive, Somers last year asked his staff to prioritize projects based on their impact to salmon streams.

Counties and cities are no more flush than the state in terms of having the capital to speed up their stream habitat work. But the state, along with taking the lead on its own work, could provide some help to local governments. It could endow a fund, similar to the state’s public works fund, which could offer low-interest loans to local governments to fund culvert work. Repayments would sustain the fund for future loans.

The state and local governments have a legal obligation, again upheld by a federal appeals court, to honor the treaties signed with the state’s tribes, but there’s a responsibility to all residents to protect a species that supports jobs and enriches our lives.