Culvert Crackdown

In a race against time, Washington state government and Indigenous groups are hurrying to remove thousands of stream-blocking culverts by 2030.

Story by Danny Graves

June 12, 2021

Northeast of Bellingham, Washington, in quiet, open farmlands, a private road crosses over McCormick Creek, a small tributary of Squalicum Creek, surrounded by forest. Project manager Darrell Gray at the Nooksack Salmon Enhancement Association (NSEA) looks out at the tranquil scene from the bridge, admiring a job well done.

Underneath his feet lie the fruits of his labor: a newly freed stream, now devoid of an impassable barrier beneath the bridge. Before renovation, Coho salmon, as well as steelhead and cutthroat trout, were stopped from reaching upstream spawning grounds, perishing at the blockage. Gray’s local-level efforts are a small but necessary win in a statewide campaign, he said.

“There’s more than enough work to go around,” Gray said.

As Gray hustles at the local level replacing private barriers, a federally mandated order handed down from the Supreme Court is requiring the state of Washington to replace 1,012 culverts to comply with historic tribal fishing rights.

Culverts are tunnels that allow water to pass beneath roadways that cross over streams or rivers. Often in the form of pipes, they can function as barriers when built too steep, narrow or high for fish to swim through. Just as the Hoover Dam creates a blockage, many culverts function in the same way. Road development in the past few decades has left behind thousands of culverts, a major threat to fish survival.

The landmark court case brought by Washington state tribes has shown the power of treaties in protecting not only the tribes’ right to fish, but also their right to the fish habitat. The state budget to repair culverts reflects that influence, skyrocketing to more than $726.4 million every two years from $4 million dollars in the past. With a 2030 deadline to have all the state-owned culverts fixed, it is up to the state and a set of stakeholders, including tribes, fisheries and landowners, to get the job done.

The case to remove culverts is one packed with history between the tribes and Washington state government. John Hollowed, legal advisor at Northwest Indian Fisheries Commission, said that there was a time when cooperative management between the state and tribes existed.

Nisqually tribal member and treaty rights activist, Billy Frank Jr., collaborated with state leader Stu Bledsoe to create the Timber, Fish and Wildlife Agreement of 1986, a pact in which timber industry needs, as well as a care for natural resources, would be met. The agreement recognized the “cooperative attitude” present and its importance in maintaining a beneficial relationship between the Washington state government and the tribes. The pact stands to this day.

Good graces, though, did not last. By the early 2000s, fish health was in decline and political trends changed at the federal level with negative implications for tribal rights. The state admitted that culverts designed without fish in mind were having detrimental effects on fish numbers.

At the end of the 1980s, tribes were harvesting around five million fish per year. By 1999, that number had dwindled to about 575,000. As a result, the tribes believed they had to sue in order to reclaim their given treaty fishing rights.

“It was an ‘our way or the highway’ kind of approach,” said Hollowed.

Twenty-one Washington tribes partnered with the U.S. government to challenge the State of Washington in 2001. They argued state-owned culverts interfered with the “Stevens Treaties,” signed in 1854. The treaties ceded land to the U.S. government while permanently ensuring tribal rights to fish. An extension of previous decisions, they argued that they had the right not only to fish, but also to the habitat needed to preserve fish runs.

In 2013, the District Court of Washington required the state to remove all high-priority culverts blocking more than 200 meters of fish habitat. This ruling was eventually brought to the U.S. Supreme Court in 2018, where the original injunction request was affirmed in a 4–4 vote (tie votes uphold a lower court decision).

It was a pivotal moment. According to a study done on the culverts and treaty implications, at the time of the injunction request, Washington State Department of Transportation (WSDOT) was not set to complete the project for 100 years.

“The big issue is: when are you going to fix all these culverts?” Hollowed said. “Their plan was a 20-year plan. The problem was . . . in 1988 there was a 20-year plan. In 2000, there was a 20-year plan, and in 2005 it was a 20-year plan. It was always a 20-year plan, they were never going to commit to it.”

Hollowed, working on behalf of the tribes throughout the case, said the Washington state government was slow to appropriately fund culvert replacement projects. He said the courts threatened jail time for responsible individuals from the state if replacements were not immediately prioritized.

“That’s ultimately the recourse if the state doesn’t fund this,” Hollowed said.

According to a 2020 Fish Passage Performance Report, WSDOT evaluated 1,526 culverts that were an impediment to fish and must be replaced. To put this project in perspective, only 14 culverts were scheduled to be replaced in 2020, with remodels costing between $1 million and $8 million each.

The Washington State Department of Transportation (WSDOT) successfully completes a culvert replacement project as mandated by federal courts on Loutsis Creek near Duvall, Washington. The first of its kind on the West Coast, fiberglass arches and panels were inserted with concrete filling, a new method referred to as a “bridge in a backpack.” Photo courtesy of WSDOT.

Molly Sullivan, continuous improvement lead within Fish Passage Delivery at WSDOT, said all hands are on deck to meet the goal of opening up 90% of attainable fish habitat by 2030.

“We have amazing people working on these projects, and I have full faith that we are definitely going to hit that milestone,” Sullivan said.

Sullivan hopes the project will show transportation and the environment are not two separate entities.

“We are learning how to do better and our systems are going to maintain the ability of natural ecosystems to function and flow throughout,” Sullivan said.

Culvert replacements are prioritized based on a number of factors including the amount of habitat blocked, tribal input and the types of fish in each watershed.

Waters bearing endangered Chinook salmon, Coho salmon and steelhead trout are considered first. According to a 2020 report, the Chinook salmon in the Puget Sound and Upper Columbia River, as well as the steelhead trout in the Puget Sound, were listed as being “in crisis.” Currently, Hollowed said some tribes do not catch enough fish for either their subsistence or ceremonial needs due in part to limited habitat and culvert blockage.

However, Derek Marks, timber, fish and wildlife manager for the Tulalip Tribes, said he has seen the benefits of a cooperative partnership with WSDOT for freeing watersheds in the tribes’ jurisdiction.

Marks was recently alerted to a homeowner with a private dam downstream of a state highway project. After the state’s project is completed and the removal of the private dam is funded, Marks said a small tributary on the Snoqualmie River will be completely restored. This highlights the need for homeowner education about stream and river blockages, according to Marks.

“Not everybody fully appreciates that [culverts] can be damaging to the tribes’ treaty rights and to the fish,” Marks said. “There’s definitely an education process that we take on during this time.”

Work done by WSDOT and regional heads, including those of the Tulalip Tribes, is being recognized by other states. Marks said there could be an important precedent in completing the Washington culvert replacement project.

“Other states like Oregon and Idaho, some as far as the East Coast, really are paying attention to what’s happening in Washington,” Marks said. “It’s actually pretty exciting to be part of that.”

Once the state-owned culverts are replaced, there is still much work to be done at a local level, as there are potentially thousands of private barriers that have not been taken into account.

Frank Lawrence III, natural resources specialist with the Lummi Nation, said strategic spending for culvert replacements in his jurisdiction, along with increased habitat, will help salmon populations return. But, he said growth in Whatcom County has raised concerns about past injustices potentially being repeated.

“We’re stuck in the middle,” Lawrence III said. “No matter how close we are to certain projects, this area’s getting so populated, and we’re beating our head against the wall constantly trying to let these guys know, along with [growth], comes more culverts.”

Danny Graves is a senior at Western Washington University majoring in environmental policy.