March 12, 2019

By Brad Shannon

OLYMPIA – Puget Sound’s beloved orcas are at risk of extinction. A historic population of roughly 200 has shrunk to 75. Now thestate Legislature is getting involved, considering a battery of options to save the distinctively marked marine mammals.

A key to heading off extinction, scientists say, is improving the health of oceangoing runs of chinook salmon, the biggest, fattest and most nutritious kind of salmon and the killer whales’ main food source. To do that, some lawmakers would like to open up more than 1,000 miles of prime inland spawning areas that are currently blocked to the fish. Even those who would rather not are feeling the pressure to do so after an order from the highest court in the land told them they had to. But the Legislature is stuck, struggling to identify a source of funding for the project.

And what is blocking all those fish? Culverts. These are the pipes and tunnels that pass under roads throughout the state, allowing water to flow downstream. It turns out that many old highway projects in the state were poorly engineered where they intersect with salmon-bearing streams and as a result can block the fish in a variety of ways.

The livelihood of Chinook Salmon depends on repairs to faulty culverts which prevent spawning salmon from passing through waterways.

This year’s legislative session marks the first time lawmakers have met to adopt a state spending plan since the U.S. Supreme Court refused last year to hear the state’s appeal of lower-court rulings in favor of more than 20 Indian tribes that sued the state over the faulty culverts. The court’s action left the burden for fixing the faulty culverts squarely in legislators’ laps, with no further appeals possible. State officials had resisted the tribal claims for nearly two decades.

Washington state transportation officials estimate upward of $3.1 billion more is needed to rectify past mistakes. That’s beyond the several hundred million dollars already spent or allocated for fish passage improvements since a 2013 federal court order in favor of the tribes.

U.S. District Court Judge Ricardo Martinez found the state had a duty under treaties from the mid-1850s to repair or replace culverts, opening up roughly 1,000 miles of stream habitat for salmon runs by 2030. Tribes depend on the fish for both economic and cultural reasons.

The order from Martinez that the Supreme Court let stand requires the state to remove potentially more than 900 culverts on state properties by 2030 and more in later years.  The state estimates it can meet Martinez’s order to restore access to 90 percent of the blocked habitat by fixing about 415 fish-passage barriers.

Fast forward to today in Olympia and the Legislature again is in a familiar posture – in effect facing a court order to find money to fix a problem the state has long delayed fixing.

Legislators faced similar orders from state courts in 2012 to fix school funding, which ultimately led to a contempt of court finding and fines. More recently the state has been under the gun of federal courts to fix major failings in a deeply flawed mental health system.

But just as those solutions have taken years to resolve, and are still not fully carried out, the culverts case has dragged on since tribes first turned to the courts in 2001. The state Department of Transportation has been repairing or removing fish barriers since the 1990s.

In what looked like a potentially major step forward, Gov. Jay Inslee proposed to spend more than $1 billion over the next two years on orca and salmon recovery, including ongoing commitments to improve Puget Sound water quality and fish habitat.

Inslee’s proposed budget, released in December, included $275 million that was specifically targeted for culverts – an amount that could, based on Department of Transportation estimates, balloon to $726 million per two-year budget cycle in future years. Importantly, Inslee’s plan for the first time provided funds on a long-term basis.

But while tribes hailed the effort to move forward and provide permanent sources of funds, the proposal to ramp up the pace of projects over a few years has tribes worried. They’d like to see more money invested right away, evening out the investments in future budget cycles and getting results – specifically better fish runs – sooner.

There are three main types of barriers that stop fish from passing through the culverts: excessive water surface drop, high velocity, and shallow water depth.

“To delay necessary funding will only make it more difficult for the [s]tate to satisfy the requirements of the (court order) and fails to timely address the restoration of our rapidly declining salmon and orca resources in Washington ecosystems,” wrote Lorraine Loomis, chair of the Northwest Indian Fisheries Commission, in a Jan. 31 letter to Inslee and legislative leaders.

Loomis added that the issue is “critical not only to the treaty tribes but also to all Washingtonians.”

The state’s progress has been slow. As of the end of 2018, the state said it had fixed 66 of the 992 faulty culverts at issue since 2013, or about 11 a year. In order to make the court-imposed deadline, that pace would have to pick up to about 84 fixes per year.

But as state legislators move into the second half of their 105-day session, Inslee’s proposal is going nowhere fast. And no clear politically palatable alternative is taking shape. The House Capital Budget Committee is scheduled to take up the issue on Thursday.

It is increasingly likely that lawmakers will take a piecemeal approach. If that happens, it will be similar to the smaller or incremental funding they have provided in recent budget cycles since the injunction – going from about $27 million for stand-alone fish-passage projects in 2013-15 to $70 million in 2015-17 and closer to $109 million in 2017-19. All those numbers pale in comparison to Inslee’s proposal.

Though minority Republicans oppose new taxes, the Inslee approach relies on exactly that. The Democratic governor proposed to change state real estate sales tax formulas to require a higher tax rate on high-end property transactions such as commercial projects and lower rates for less expensive ones valued at less than $250,000. Overall, that could produce more than $200 million a year in extra revenue.

House Democrats have considered changing the tax rates on property sales in the past, and they are proposing it again this year. But the Democrats are considering using that money to cover housing programs and other operations costs of government, not fixing culverts.

The Senate may be more open to Inslee’s idea. Senate Ways & Means Committee Chair Christine Rolfes, D-Bainbridge Island, said all funding ideas remain on the table as the Senate waits to see how the various ideas fare.

Rolfes said it is possible that a solution to paying for orca recovery and culverts includes some money from all three of the state’s major budgets – the operating budget, the capital or construction budget, and transportation.

There is one approach that would provide new permanent transportation funds for culverts and other road or transportation infrastructure projects. This is a carbon-tax and gas-tax bill pushed by Sen. Steve Hobbs, D-Lake Stevens, who chairs the Senate Transportation Committee.

Hobbs’ plan, which includes controversial fees on new construction projects, would specifically cover culvert costs and pay for major highway projects such as a bridge over the Columbia River and new electrified ferries.

Hobbs says he is open to amending Senate Bill 5971, which cleared its first big hurdle on March 6. The legislation received approval on a largely party-line vote in the Transportation Committee and was sent to the Rules Committee, which determines if or when it can move to the full Senate floor for action.

The measure has plenty of detractors. Republicans including Sen. Curtis King of Yakima are dead set against a carbon tax, saying it could increase fuel costs for motorists and truckers.

Senate Republican Leader Mark Schoesler of Ritzville and other GOP members are quick to note that voters rejected a carbon tax in 2016 and 2018. Another sensitive point is that Washington’s gas tax is second highest in the country at 49.4 cents per gallon, following a two-step increase of nearly 12 cents in 2015-16, and Hobbs is recommending another 6-cent increase.

However, unlike the failed ballot measures, Hobbs’ legislation uses carbon-tax proceeds for road and fish-habitat restoration, and the other proposals were not linked so directly to transportation. Transportation is the state’s leading sector for greenhouse gas emissions linked to global warming, so Hobbs’ carbon-tax proposal has a logical tie-in to transportation.

Still, the Hobbs approach isn’t expected to go far because it is a pricey $15 billion plan, and it usually takes a few years to build the political support for that large an increase.

Rep. Jake Fey, a Tacoma Democrat and chair of the House Transportation Committee, thinks a gas tax increase is eventually a good approach that could help pay for culverts. But he thinks it is probably too soon to win support for the tax.

Instead, Fey said lawmakers may need to look for a short-term answer to culverts funding and then take up a proposal to increase the gas tax in 2021. He said details of his approach will be clearer in late March, when he expects to release his two-year transportation budget proposal.

But how much the state can raise by looking for short-term options is unclear.

The Department of Transportation is seeking $275 million for the 2019-21 biennium because it believes that is a reasonable target for projects the agency could complete on that timeline, according to Megan White, director of the environmental services office for the DOT.

Because current-law budgets contain about $89 million identified for culverts in the coming biennium, White said the actual new money in Inslee’s and the department’s funding request is closer to $186 million.

Fey is skeptical that DOT can do that many projects and said he does not want to raise taxes for culverts this year if there is a chance some of the money will be idled in an account.

But White said the agency has been ramping up since the 2013 court ruling. This year’s $275 million request is “based on what we thought we could do in the next biennium,” White said.

Kim Mueller, manager of DOT’s fish-passage delivery program, said there are a few big projects that could add dozens of miles of important habitat but which require new funds to go forward in the next biennium.

The biggest is a set of four barrier removals in Kitsap County located around State Route 3 and Chico Creek and a tributary. This $55 million project would remove four fish barriers and add a long bridge near an estuary, opening up or improving fish access to 21 miles of habitat, Mueller said.

“That is the largest barrier project we’ve had to date,” Mueller said.

The project would help the chinook salmon that are so important to orcas and also other fish runs important to the Suquamish tribe, Mueller said. Other barriers have already been fixed both upstream and downstream of this project, she said.

One other big project awaiting funds is between Port Angeles and Sequim along U.S. 101 at Siebert Creek. The $20 million job would improve access for salmon to 34 miles of habitat.

Top Republicans on the House Transportation Committee, led by Rep. Andrew Barkis of Thurston County and Rep. Jim Walsh of Grays Harbor County, are developing a counter-proposal. Barkis and Walsh said in an interview they believe there is money available to shift in the transportation budget – or from other sources – to cover the short-term need.

Details were still scarce last week, but Barkis and Walsh said their plan would give more authority to the Fish Barrier Removal Board that funds projects for local governments and private interests.

The lawmakers want to make sure funds are available for local governments to remove stream barriers for which they are responsible that are downstream or upstream of important state projects.

Local governments are not subject at this point to the federal court order – but their culverts block streams just like the state’s culverts. So the state Department of Fish and Wildlife has requested roughly $50 million for about 82 of the fish-barrier board’s projects over the next two years, some off which would fix the local governments’ culverts. The agency says it could open more than 160 miles of habitat.

Rolfes, the top Senate budget writer, thinks the state is already doing a good job of removing stream barriers in multiple jurisdictions along a single stream, but the senator said there may be better ideas to consider.

Rolfes also said it is not unusual to still be searching for a solution to a problem like orca and salmon recovery at this point in a session. She said it is possible the Legislature will again take a more piecemeal approach to this budget challenge rather than adopt a whole-hog approach, as embodied in Inslee’s proposal with real estate taxes and in Hobbs’ carbon-tax proposal.

“That may be the approach this year. But I don’t know,” she said.

Brian Cladoosby, chairman of the Swinomish Indian Tribal Community, one of the tribes that sued the state, said lawmakers must get serious about the funding challenge.

“It’s not like the state didn’t see this train leaving the station 20 years ago – that they would potentially be on the hook for hundreds of millions of dollars …” Cladoosby said. “The legislators better open their eyes to the fact that they are under the gun and that funding this is not an option for them. They have to take it serious and they have to start putting in the resources to make sure they abide by this (court) decision.”

Clearly, the clock is starting to tick a little louder for legislators. The Legislature’s scheduled adjournment date is April 28, and Senate Majority Leader Andy Billig, D-Spokane, noted: “Culverts, it’s a riddle we’ve got to solve.”