Come January, lawmakers will face a surprise that will strain Washington’s transportation budget for years: an up to $4 billion increase in the cost of complying with a court order to improve salmon passage under state highways.
It’s an eye-watering sum, doubling the size of current estimates, that could force difficult questions about the future of some transportation projects. But, facing a deadline imposed by a federal judge in a lawsuit brought by Washington tribes, the Legislature may have no choice but to act, and soon.
The added cost comes as Washington State Department of Transportation officials encounter increasingly complex fish passage projects. Pile on broader construction industry pressures and the remaining work’s price tag soars: State officials estimate that opening up 10% more salmon habitat will suck up as many dollars as the first 80% of the habitat gained.
The nearly 20-year process to remedy the state’s culverts is now forecast to cost between $7.3 billion and $7.8 billion, well beyond the $3.8 billion already spent or earmarked by the state Legislature.
For a state struggling with crumbling roads, a decrepit ferry system and skyrocketing highway costs, the new figure is sobering news that threatens lawmakers’ once lofty ambitions. For comparison, the state estimated it would need $4 billion to build an entire new fleet of electric ferries.
“It sort of pops the bubble,” said Rep. Jake Fey, D-Tacoma, chair of the House Transportation Committee, who helped shepherd through a record transportation funding bill last year. “We got all that money together in 2022 and now we have half what we thought it was.”
The state is bound by a 2013 federal court injunction that enforces tribal treaty fishing rights, the result of the hard-fought case the state lost against Western Washington tribes. It has until 2030 to repair or replace enough culverts to open up the bulk of certain habitat upstream.
Culverts are essentially large pipes, typically made of concrete or metal, that carry water under a roadway. Because of their design or a lack of maintenance, many culverts impede salmon from swimming through — either upstream while spawning or downstream as juveniles.
Salmon populations in the region have continued to decline since the ruling, adding urgency to stream restoration efforts — and funding demands. Both the tribes and the state have sought to avoid returning to court to modify the injunction, although that remains a potential response to the jaw-dropping escalation in costs.
A spokesperson for the Northwest Indian Fisheries Commission, which represents the tribes in ongoing culvert discussions with WSDOT, said her group “has no comment on the culvert issue.”
Ironically, the more the state spends on culverts, the less ecological benefit it gains. Earlier replacements targeted low-hanging fruit — relatively simple projects that freed up miles of salmon-friendly streams.
“As you go down the list, you’re getting less and less habitat,” said Kim Rydholm, WSDOT’s fish-passage delivery manager.
The figure for new culverts would be dramatic enough on its own, but it’s just the latest in a string of dire reports from WSDOT, which has lately struggled with exploding construction costs and fewer bids on its largest projects. Just this year, the lowest bid to build a new Highway 520 viaduct over Portage Bay in Seattle came in $562 million over state estimates, and a project to extend toll lanes on Interstate 405 will be $230 million more than what the Legislature budgeted.
WSDOT officials have not made recommendations to legislators for how to respond to the new estimates, but all $3.8 billion previously pegged for culverts — much of it from last year’s 16-year, $17 billion transportation package — will be committed by the end of 2024.
The need for new culvert dollars is fast approaching. For the state to stay on track to meet the 2030 deadline, it would need an additional $725 million this biennium, which puts pressure on lawmakers to act in the 2024 session, despite it being an even-numbered year when the Legislature typically only considers small spending tweaks.
Transportation officials have only just broken the news to lawmakers in a series of one-on-one briefings over the past 10 days, and a strategy for answering is still in its infancy.
“We have a lot of priorities,” said Fey. “So I think this is for the governor’s office and for the Department of Transportation and the Senate and the House to have some important conversations and see if we can agree on a strategy about how we’re going to approach this.”
Federal injunction
In 2001, a group of 21 tribes and the U.S. government sued Washington state to compel the replacement or repair of state-owned fish-blocking culverts. The tribes contended that the state had a duty to preserve fish runs, based on their fishing rights secured in 19th century treaties.
U.S. District Judge Ricardo Martinez ruled in favor of the tribes in 2007, and after a trial eventually issued an injunction requiring the state to fix or replace its culverts.
In 2013, Martinez ruled that WSDOT had to replace or repair a portion of roughly 800 fish-blocking culverts in Western Washington more quickly, ordering the state to open up 90% of the total upstream habitat by 2030. The decision was ultimately affirmed by the U.S. Supreme Court.
But in the years following Martinez’s decision, the state lagged. Spending on WSDOT culvert replacements remained under $50 million a year, on average, until 2019. By June 2021, the DOT had repaired or replaced just 86 culverts subject to the injunction. More than 400 total are needed to meet the 2030 deadline.
Construction ramped up dramatically after Gov. Jay Inslee in 2022 signed the Move Ahead Washington legislative package, which funneled $2.4 billion to meet the court-imposed deadline. As of this year, WSDOT has repaired or replaced a total of 114 injunction culverts, and it has identified 313 more (some of which are under construction) that would bring it to 90% of total habitat by 2030.
At least 18,000 fish-blocking culverts dot the Washington landscape, according to the state Department of Fish and Wildlife. They’re owned by counties, cities, state agencies, private landowners and others. The vast majority aren’t part of the injunction. Municipalities have for years lobbied the Legislature to fund other replacements, concerned the tribes may sue them next.
Ballooning costs
WSDOT managers blame the higher cost estimates on a confluence of factors, but the most glaring is that some of the remaining culvert replacements are large and complex — sometimes requiring multiple bridges, relocating onramps and offramps, and complex engineering to deal with poor soil conditions. The agency is just now realizing how much they could actually cost.
The 11 most expensive projects in the plan, seven of which run under either Interstate 90 or Interstate 5, are alone expected to cost a total of $1.4 billion because of their complexities. Peabody Creek in Port Angeles, for example, runs through a WSDOT culvert under Highway 101 and continues under adjacent city streets and buildings before emptying into the harbor. That project is expected to cost $150 million.
“If we were going to daylight this channel, we would be taking out whole portions of the city basically, in order to do that,” said Rydholm, the fish passage manager. Another project in Port Angeles might require the state to buy a hotel to secure property rights.
In the years after the injunction, WSDOT tackled culverts with the most upstream habitat, and many of those were in less developed watersheds with fewer constraints. The average cost for projects in 2018 was $5.3 million. For the remaining projects, the average is $20 million.
After spending the current $3.8 billion, WSDOT expects to have reached 80% of the total habitat. To get the additional 10% it may cost an additional $4 billion.
And WSDOT is constrained when it comes to swapping out projects; they could scrap a pricey one, but that might mean taking on six smaller projects to open up the same amount of habitat.
WSDOT now has a more realistic picture of costs because the agency recently hired HDR, an international engineering firm, to estimate the price of specific construction projects. Previous figures were based on assumed costs, but they didn’t account for each site’s constraints.
There were also flaws in the previous estimates. WSDOT assumed that narrower creeks would require smaller, less expensive culverts. But it turned out the opposite was true. Many smaller creeks are in urban areas, where surrounding development ramps up complexities and costs.
Also, the agency is building far more bridges than expected, which are generally more expensive than culverts, in part to accommodate higher flows from climate change-driven intense rainstorms.
The litany of other cost-escalating factors might sound familiar: more expensive building materials, labor shortages and fewer competitive bids amid a nationwide surge in transportation construction. In order to meet the 2030 deadline WSDOT is also spending a lot on consultants to supplement in-house employees.
Legislative options
The Legislature could consider delaying highway projects, shifting money from other pots of funds or raising taxes. Lawmakers may be tempted to look to the state’s carbon auctions to cover the costs, which are projected to bring in $2 billion over the next two years.
“We’ve got to look at the revenue and the cash flow and see what we can do,” said Fey. “But certainly there will be delays [to state projects]. And if we don’t have any flexibility those may be substantial delays.”
Fey declined to speculate which projects might be delayed, but the state is set to advertise several large contracts in 2024, including $500 million to widen Highway 18 near Issaquah and $400 million to build the remainder of Highway 167 between I-5 and Puyallup.
Typically, the transportation budget stands apart from the state’s general fund, insulating vital state functions such as health care, children’s services or higher education. But in 2022 budget writers approved a $2 billion transfer to support the Move Ahead package.
Because it’s a short legislative session in 2024, Mike Faulk, spokesperson for Inslee, said, “it’s not likely the Legislature will make significant progress” on culverts funding, but that there would likely be “policies that lay the groundwork for future sessions.” Those could include changes to contracting processes, but Faulk said it’s too early to say for sure.
Sen. Curtis King, R-Yakima, said lawmakers should consider making another general fund transfer and going after more federal funds. For years, Republicans have proposed funneling vehicle sales taxes to the transportation budget, but haven’t found traction. In light of the new highway and culvert costs, they’ll almost certainly revive their plan, although competition for general fund dollars is already fierce.
Return to court?
The state could, at least theoretically, return to federal court to ask Martinez to modify the injunction. But after a bruising, decadelong legal battle, both the tribes and the state have worked out differences behind the scenes.
“We currently don’t have any intentions to go back to court,” Rydholm said. “We are focused on this delivery plan and complying with the terms of the injunction.”
Inslee’s office demurred. “There haven’t been any discussions in our office about pursuing legal remedies in the courts,” Faulk, the spokesperson, wrote in an email.
But legislators have asked about legal remedies during briefings on the escalating costs, Rydholm said. King, the ranking Republican on the Senate transportation committee, said the state could have a “reasonable request” for the judge.
“It isn’t that we haven’t tried” to remove the fish-blocking culverts, he said. “But if we’re only gaining 10%, is it worth the $4 billion to do it? Are there other alternatives that perhaps the judge will let us look at?”
The cost of culvert replacements was a key issue during the 2009 culverts trial. State lawyers argued that an accelerated schedule would mean shifting costs away from other transportation projects, and possibly other state programs.
John Sledd, attorney for the tribes, discounted the risk. “The injunction the plaintiffs have proposed will trigger no state budget crisis,” he said at the time.
Martinez sided with the tribes. If the state needed more money, he suggested, the Legislature could always pass a new gas tax.
