Supreme Court’s order forces Washington to continue costly culvert replacement

A court order that forces Washington state to remove barriers that block salmon migration will remain in place after a Supreme Court ruling.

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The US Supreme Court was divided 4-4 on Monday over a long-running lawsuit that pits the state against the tribes and the feds. Because the justices were tied, it means a lower court ruling stands.

At issue is whether the state must fix or replace hundreds of culverts. Culverts allow fish-bearing streams to pass beneath roads.

The state has replaced more than 300 culverts. It’s estimated this federal ruling will cost the state more than $2 billion by 2030.

The latest culvert to be replaced is blocking the Little Pilchuck Creek, between Lake Stevens and Granite Falls, under SR 92.

King County Executive Dow Constantine said that the 4-4 decision sent a strong message.

“The U.S. Supreme Court sent a strong signal across the nation and here at home in support of tribal treaty rights,” Constantine said. “I commend the Court for taking this case and providing the final word on a decades-long argument. Now, it is time to set aside acrimony and disagreement, and get to work reducing barriers to fish passage. We must do whatever it takes to ensure the survival of our Chinook, kokanee, steelhead, and Coho for future generations. Under my direction, King County departments have already been developing a culvert strategy that inventories where county roads, trails, and other infrastructure block access to habitat, and we will work with tribal and state scientists to assess where fix them, beginning with those that bring the most benefit to salmon.”

Attorney General Bob Ferguson’s response was less triumphant than Constantine’s. The AG’s office pointed out that it was federal government that provided designs for the culverts. It also states that there are other blockages that still prevent fish from reaching the culverts even if they are replaced. Ferguson said that the state will work with others to replace culverts.

“It is unfortunate that Washington state taxpayers will be shouldering all the responsibility for the federal government’s faulty culvert design,” Ferguson said. “The Legislature has a big responsibility in front of it to ensure the state meets its obligation under the court’s ruling. It’s also time for others to step up in order to make this a positive, meaningful ruling for salmon. Salmon cannot reach many state culverts because they are blocked by culverts owned by others. For example, King County alone owns several thousand more culverts than are contained in the entire state highway system. The federal government owns even more than that in Washington state. These culverts will continue to block salmon from reaching the state’s culverts, regardless of the condition of the state’s culverts, unless those owners begin the work the state started in 1990 to replace barriers to fish.”

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