PORT ANGELES — The Washington State Department of Transportation is planning a giant salmon restoration project here that could require buying out a motel owner, tearing down the building and excavating the highway culvert beneath it, at a price tag of some $100 million.
Yet even after all this work, salmon wouldn’t be able to swim up most of the stream.
As WSDOT races to replace hundreds of culverts by 2030 to meet a court deadline, lawmakers and at least one tribal leader are asking whether projects like this make sense.
A group of 21 tribes sued the state in the early 2000s to force the replacement of culverts that, because of their design or lack of maintenance, block salmon and steelhead trout migration. A federal judge, based on the tribes’ treaty fishing rights, ordered the state to fix or replace problem culverts running beneath state highways.
That’s how this project on White Creek landed on the state’s list. By the state’s math, the culvert replacement would open nearly 4 miles of “potential” habitat. But the court-ordered calculation doesn’t account for other problems that affect salmon, including a polluted old mill site, a partial blockage downstream on Ennis Creek and 10 more blockages upstream of the motel.
In reality, many salmon wouldn’t even be able to access White Creek, the state’s own survey shows. Near the Strait of Juan de Fuca, a city-owned concrete slab blocks fish passage under most conditions, according to the survey.
How culverts can block fish
Because of their design or lack of maintenance, culverts can block salmon from migrating. Some culverts are completely impassable, while others may let some fish slip through. Here are a few ways they can act as barriers.
Now lawmakers and tribes are reexamining the court order, proposing new ways to target salmon restoration funds — a delicate “balancing act,” as one tribal leader put it.
The state’s culvert repair program is its largest salmon recovery effort ever, with $3.95 billion already allocated to replace salmon barriers with natural streambeds. To meet the looming deadline, WSDOT last fall asked for up to $4 billion more, prompting fresh skepticism from legislators, who’ve grown increasingly concerned that the state plans aren’t always the best way to help salmon. And just last month, the department revised the request to $5 billion to account for culverts that have structurally failed over the past year.
A Seattle Times investigation this spring highlighted how WSDOT spending is creating stranded restoration projects with limited value today because the state program doesn’t fix other problems in the same watersheds, like barriers owned by other parties. White Creek is a classic case, with its other salmon-blocking barriers upstream and downstream of the state’s culvert. And the potential spectacle of demolishing the motel has raised the question of whether other restoration projects would be more effective and a better use of taxpayer money.
“While we are fixing mistakes of the past, you do it in a more surgical way. You don’t do it with a bulldozer approach, you don’t do it with a meat cleaver,” said W. Ron Allen, chairman of the Jamestown S’Klallam Tribe, whose traditional territory includes White Creek. The tribe was among those who sued the state and won the federal court order. Allen holds firmly to that victory but also sees the need for a flexible and creative approach to realize its benefits for fish.
“My view is, work out an agreement with the state and the court … let’s step back and reprioritize, figure out which ones are the ones that are the most important right now and zero in on that,” Allen said.
He said he also understands there is only so much money and that the public has many needs, as do the tribal nations. “There is that balancing act … and we don’t want to turn the public against salmon.”
Lawmakers are also saying they don’t have $5 billion more to spend now. But even if they found the money, it would be logistically impossible to finish the list by 2030, as required in the court injunction, state leaders have told the tribes.
Rep. Steve Tharinger, D-Port Townsend, said he is using the motel project, which is in his district, to call for change because “it’s a high cost with little fish return.”
“It’s the classic poster child of what we shouldn’t do,” he said.
Gov. Jay Inslee discussed the predicament with heads of tribes this summer and invited them to talks about a path forward. His office is waiting for an answer. If discussions progress with a new governor, the parties could ultimately end up in mediation, with a plan to present to the federal judge.
“Adopting any alternative requires broad consensus that it would improve salmon recovery and respect Tribal rights, and may also require court approval,” Inslee spokesperson Mike Faulk wrote in an email.
The motel
Chintu Patel, co-owner of the Olympic Inn & Suites, didn’t even know there was a stream or a culvert under his motel until WSDOT told him about it. Maple trees block the view to the south, where the creek flows through a ravine 30 feet below and into the concrete tunnel in question. To the north, an RV dealership and trees obscure any hint of water, as the stream transitions into lowland vegetation.
Patel and his business partner bought the rundown property in 2020 for $6.25 million and soon started fixing it up. They ripped out carpet, remodeled bathrooms and repainted the 115-room motel tan with burgundy accents. “We’ve completely renovated the property,” said Patel, who employs roughly 20 full- and part-time employees at this motel and has ownership interest in 15 other hotels or motels in the state.
After he received a letter from WSDOT two years ago, he was surprised to learn about the plans to replace the culvert. If he had known, “We wouldn’t have put in all the renovations,” he said.
Patel said WSDOT hasn’t yet broached the subject of eminent domain, the state’s legal power to seize property. But the agency has taken private property to replace culverts and compensated the landowners. He’s concerned an appraisal wouldn’t capture the property’s potential value.
“They would really have to twist our arm to sell it,” Patel said.
Looking to avoid buying and demolishing the motel, WSDOT has examined alternatives, such as routing the stream to take out a different portion of the highway. It doesn’t have a workable solution yet.
WSDOT may pursue the project anyway, despite the high cost and the stream’s other habitat problems. Otherwise, it would have to replace multiple culverts elsewhere to hit its 2030 target, at potentially even greater cost, WSDOT fish passage manager Kim Rydholm said.
White Creek has “little production potential” for salmon because of its many culverts, according to the management plan by the area’s official watershed planning group. The 10 upstream obstructions are owned by private parties or local governments. Technically, any barrier to potential salmon migration violates state law, but the Department of Fish and Wildlife generally doesn’t require owners to remove them. The department is working on new enforcement rules.
WSDOT asks for $5 billion more
Like stormwater rushing into a swollen creek, revelations about problems in WSDOT’s fish passage program kept pouring in over the past year.
In November, WSDOT unveiled its massive budget request to lawmakers. Then The Times investigation spotlighted some culvert projects, costing tens of millions apiece, that are essentially useless without further, big investments. This summer, Inslee and WSDOT leaders told tribes they were probably not going to hit the 2030 deadline. And now the cost estimates are even higher.
The factors are converging as legislators prepare for the November election and the legislative session, which begins in January. Key lawmakers are discussing how to improve salmon habitat beyond culvert projects that don’t deliver much benefit for salmon.
They are rethinking how the state fulfills the court order while still honoring tribal treaty rights and the intent of the federal judge’s ruling. All that while navigating intratribal politics, in which each of the 21 sovereign tribal nations that are a party to the federal case can stake their own position.
U.S. District Court Judge Ricardo Martinez in 2013 ordered WSDOT to identify its Western Washington culverts blocking 200 meters or more of potential upstream habitat. Then, by 2030, WSDOT is required to open up 90% of the habitat above those culverts.
But the calculation ignored other culverts and similar barriers on those same streams, including blockages owned by cities, counties and private parties.
Tharinger, the Port Angeles-area state representative, said he recently realized that WSDOT’s list of culverts wasn’t well-vetted, causing him to reconsider the funding and strategy.
In September, WSDOT submitted its biennial budget request, upping the need to $5 billion. Also, the agency now says the previous funding didn’t stretch as far as expected. Of the additional funds, $3.5 billion would recover 15% of the habitat, toward the 90% goal. The $3.95 billion that’s already allocated will open up 75% of the habitat, WSDOT says.
“We don’t have the money,” said Tharinger, chair of the House Capital Budget Committee. For what the state does allocate, he sees it in simple terms: “How do we spend the money to recover the most fish, to create the most habitat for fish? That’s really the question — not what the court tells us.”
Instead of plowing ahead according to the court order, Tharinger hopes the tribes and state can agree on a strategy to open up the most actual habitat, taking into account the other barriers on the streams. And he wouldn’t limit it to just culvert replacements. Larger projects, such as entire flood plain restorations, should be on the table, he said.
“If the tribes were in agreement, and we went to the court, that might be a better way for us to spend the dollars than on a lot of the remaining culverts,” said Tharinger, who emphasized that the state must meet its legal obligation to the tribes.
The state could negotiate a longer schedule, maybe over the next six to eight years, he said, and commit to spending a certain amount per biennium to show progress on recovering salmon. But that’s dependent on getting consensus from tribes, he said.
Allen, the Jamestown chairman, sees a path.
“We can hold the state to their obligation,” he said. “But why don’t we consider — not letting them up off the obligation — but provide some flexibility so the tribes of jurisdiction for the culverts in the area — their territory — they can have a say on what alternatives might be.”
Rep. Jake Fey, D-Tacoma, is focused on the cost and schedule of the WSDOT program.
“This would be a momentous undertaking to try to get this done by 2030, and the likelihood of that is rapidly getting more and more unlikely,” said Fey, chair of the House Transportation Committee.
Sen. Marko Liias, D-Edmonds, said, “We’re having very productive conversations” with tribal and state leaders about alternatives but that lawmakers need to be sensitive about the tribes’ restoration priorities. Liias is chair of the Senate Transportation Committee.
A given stream might not look cost-effective on paper for actual salmon habitat, but it might be sacred for a tribe, he said. “There should not be a pencil pusher in Olympia who’s deciding what’s happening in watersheds.”
Also, some lawmakers were under the “misguided” impression that renegotiating the injunction would reduce the state’s cost. “We’re going to have to invest several billion more than we originally estimated,” Liias said. “We shouldn’t pursue these alternatives to save money.”
Some, including Sen. Curtis King of Yakima, the top Republican on the Senate Transportation Committee, are more blunt.
“It makes no sense to spend another $3.5 billion to gain another 15%,” he said. “We need to go talk to the judge, and we need to go talk to the tribes and see if we can’t work something out that makes sense.”
WSDOT leaders say no project is wasted because doing the most expensive projects now clears the way for other less daunting restorations in the same watersheds, including culverts owned by other entities.
“Everyone must play their part in removing barriers to fish,” spokesperson Barbara LaBoe wrote in an email, “and WSDOT’s part is addressing the culverts it owns.”
Puyallup Tribe’s deal
WSDOT and at least one tribe have already quietly figured out a deal along the lines of what lawmakers are now considering.
Two years ago, before the revelations about the ballooning cost and schedule, the department planned to replace two culverts on highway construction projects near Tacoma, which together would have cost $75 million or more. The fish passage projects, if carried out, would have had minimal habitat benefits in such a highly developed landscape, WSDOT’s descriptions of the projects showed.
Leaders from the Puyallup Tribe of Indians instead pointed to a stream with much higher potential to bring back salmon and struck agreements with WSDOT to leave the culverts as partial barriers. Instead, the state will pursue removal of small dams at an old private trout hatchery near Tacoma, freeing up the better creek.
“I was impressed that they were willing to do that,” said Fey, the Tacoma-area state representative. “Maybe the circumstances were right to do that, and it might not be in every case. It’s hard to come up with a global solution here.”
When other tribes learned about the deal, a group of leaders from six tribes wrote to Attorney General Bob Ferguson, criticizing the state for its “secrecy” when negotiating with the Puyallups. The federal court order did not allow WSDOT to dodge its obligation to fix fish-blocking culverts, they said, although they left open the possibility of further agreements.
The tribes “do not necessarily take issue with the substance of the mitigation projects” agreed to by the Puyallup Tribe, the letter explained. But it blasted the state’s “overbroad assertion of authority” under the federal order and said doing so in private negotiations was “unacceptable.”
Now that Allen and others are calling for alternative approaches, it’s unclear how other tribes will respond.
Eric Eberhard, the associate director of the Native American Law Center at the University of Washington School of Law, said culvert deals like the one struck by the Puyallup Tribe would be legal under the terms of the federal injunction.
“That is a tribe-by-tribe, a culvert-by-culvert discussion,” Eberhard said. Any agreements the state reaches with tribes would have to follow the sentiment behind Martinez’s rulings, that the alternative projects “would increase the state’s ability to improve more fish habitat. That is consistent with the intent of the court.”
What’s next
As the next legislative session approaches, state and tribal leaders are progressing toward talks. It’s too soon to say if it will lead to formal mediation, but they have some basic points to discuss: If it’s not possible to hit the 2030 deadline, what is a reasonable timeline? How much money must the Legislature devote in the near term? Can the state and tribes strike more deals like the Puyallup’s? And if so, who gets to decide which alternative projects are acceptable?
Framing those complications are the state’s legal obligations — repeatedly upheld by federal courts — to honor Native people’s right to fish, just as when they signed treaties with the United States in 1854-1855 and ceded most of their lands. Those treaties secure the tribes’ right to not only fish, but the right to have fish to catch. So now the question is how to best recover salmon, Allen said.
“We have a lot of influence, and we should be part of the solution,” Allen said. “We should be leading on the solution.” That will require flexibility and creativity, he noted. “You lawyers, I pay you to be creative, so damn it, find your creativity and find me that solution. Find me that language that gives me some flexibility, and we can make this happen.”
