Watching Our Water Ways

The long-, long-, long-awaited court ruling in the so-called culvert case has finally been issued. The bottom line is that the Washington Department of Transportation has been given 17 years to upgrade all state culverts to accepted standards to allow fish passage.

That’s basically what 21 Western Washington tribes asked for when they proposed a court order three years ago. Actually, the tribes asked for 20 years, but Judge Ricardo Martinez subtracted the three years that they waited for a final decision in the case, first filed in 2001. See my latest story in Saturday’s Kitsap Sun, or review the history in an article published in January.

How much effect this case will have on the state budget is hard to say. The state will likely appeal, because there’s so much at stake — including the tribes’ authority to affect how the state spends its money. As I see it, under Martinez’ ruling, treaty obligations are not much different than the constitutional obligations the state has to provide “basic education.” And we all have seen how the governor and Legislature are looking under rocks to find money for that purpose.

One estimate of the cost of fixing all the culverts is $1.9 billion, but that’s assuming the state has a complete inventory. It could be more. Martinez wants to see a complete inventory within six months. People concerned about salmon will probably make sure their least-favorite state culverts are on the list.

The latest “Fish Passage Barrier Inventory” (PDF 5 mb), completed last July, identifies about 1,500 culverts that block significant upstream habitat. That inventory and other information can be found on WDOT’s website “Fish Passage.”

If you’d like to read Martinez’ ruling — which includes information on the treaties, salmon habitat needs and culvert history — download the decision (PDF 111 kb) here and the injunction (PDF 45 kb) here.

Through all these years, WDOT has not been ignoring the problem. As I have reported, the state has been upgrading culverts while doing major road repairs and also increasing the budget for stand-alone culvert replacement.

But at the current pace, it could take between 50 and 75 years to get all the work done, maybe more. These are just guesses provided to me, based on the average cost of repairs, but every culvert is different.

Near the upper end of the scale, replacement of a culvert that carries Chico Creek under Highway 3 is estimated to cost between $20 million and $30 million alone. The project will require several bridges for the four-lane freeway north of Bremerton plus on- and off- ramps in that location.

State officials are very aware of this Chico Creek culvert, which lies at the mouth of what has been called the Kitsap Peninsula’s most productive salmon stream. Salmon are getting through the culvert, but it’s a struggle. The culvert is considered a high priority by all, but replacement will probably take a special appropriation from Congress or the Legislature, or both.

As I watch our state highways deteriorate, I keep thinking back to the 1960s and early ‘70s when Washington had some of the best roads in the country. It was a pleasure to drive back then, if my memory isn’t faulty. Although money is needed to repair roads today, I think a good argument can be made that salmon were here first and should have been considered when the roads were built. Failing that, many people consider it essential to make things right now.

I should point out that the ruling does not immediately affect county roads or other projects that block the passage of salmon or affect salmon habitat. However, for better or worse, the legal principles established by the 1974 Boldt decision and reinforced by this culvert case could open the door to other types of court-ordered repairs to salmon habitat.

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Changes are coming rapidly to the Elwha River, as massive amounts of sediment shift around in the river channel and flow out into the Strait of Juan de Fuca.

Phoebe Tyson, a Student Conservation Association intern, joins in planting efforts in the former Lake Mills to help restore a natural forest. / Photo courtesy of Olympic National Park

Over the past few months, researchers have documented the formation of new beaches and the growth of the delta at the mouth of the Elwha. I described these latest changes in a story in Sunday’s Kitsap Sun.

The new information came out of an annual workshop of the Elwha Nearshore Consortium, which has a special interest in the river, especially its effects on the coastal reaches along the strait.

It’s exciting to hear about the transformation of the river, and I would like to congratulate the scientists for the monitoring work that allows us to talk about “before” and “after” dam removal — although the “after” part will be an ongoing story for decades. Many research organizations are involved in the Elwha, and I hope their funding holds out to tell a more complete story from a scientific perspective.

Meanwhile, many writers, photographers and videographers are telling their own stories about the restoration in various ways, and new books and documentaries are on the way. I’ve talked about some of these in the past and will continue to do so as new works are released.

The human connections to the river, particularly those of the Lower Elwha Klallam Tribe, have been widely recognized as an integral part of the restoration story. Many Klallam elders have been gracious in sharing their culture and traditions.

Although the Elwha Dam removal is far from the only restoration effort taking place in Western Washington, it may be the one place where nature is working at an extraordinary pace to put things back the way they were.

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UPDATE, FEB. 19, 2013

Pope Resources officials have been meeting frantically with legislators and other public officials to find a way out of the dock dilemma. Jon Rose of Olympic Property Group emailed a newsletter today to interested people involved in the Kitsap Forest and Bay Association. In it, he explained the company’s position and what is being done to resolve the dilemma:

“Our Kitsap delegation including Congressman Derek Kilmer, Sen. Christine Rolfes, Rep. Drew Hansen, and Rep. Sherry Appleton have all engaged with the Department of Ecology and the Governors’ office.

“Additionally, a new DOE director Maia Bellon took office around the same time as the newspaper story broke. She has spent a great deal of time coming up to speed on this project and met last Friday with Pope Resources CEO David Nunes.

“At this point, our suggestion is to stand by and be ready to assist our elected officials when they indicate it is time to do so.”

I’ve copied the newsletter into a PDF document (PDF 78 kb) for those not on the mailing list.
—–

A proposed cleanup and restoration of Port Gamble Bay, worth somewhere in the range of $30 million, seems so close yet so far away this morning.

The site of the former Pope & Talbot sawmill, now a toxic cleanup site. / Washington Department of Ecology Photo

It seems Pope Resources has come to an impasse with the Washington Department of Ecology, not over any aspect of the cleanup or restoration, not over a plan to buy waterfront property, not even over plans to restore the historic company town.

The issue comes down to a couple of docks that nobody wants or needs, as I explain in a story in today’s Kitsap Sun. Pope wants to keep the two docks inside the bay until a new one is approved on the site of the old sawmill, just outside the bay. Although the legal aspects are not entirely clear, Jon Rose, who represents the company, told me that the old docks would help preserve legal access to the water, serve as environmental mitigation for the new dock and provide leverage and a backup plan if the new dock is not approved.

If the deal can’t be put back together, Ecology will turn and focus on the cleanup by putting together an enforcement order against the company. The restoration plan, which has generated enthusiastic support from all involved, would be abandoned, leaving about $15 million in restoration work on the table.

Most everyone involved — including those representing Pope and Ecology — have expressed disappointment that the parties have come to this impasse over a couple of docks that nobody really wants.

Port Gamble Bay is recognized as important to the overall health of Puget Sound and to marine life around the Kitsap Peninsula. The bay remains one of seven inlets listed as the top priority for cleanup under the Puget Sound Initiative. That’s why nobody wants to believe a deal cannot be struck.

Someone may have a real answer, but all I can see is that we need to find a way to jump to the endgame, something akin to traveling in a time machine. If everyone could agree to a dock that would meet the town’s needs without causing environmental harm and if the permits could be obtained practically overnight, then everything would be fine. But, of course, those two “ifs” are central to the problem.

It reminds me of the impasse in Congress over the federal budget. Both sides are well-meaning. Both sides want to get things done. But they can’t seem to find a pathway to agreement without compromising their fundamental principles.

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It’s been 12 years since we started talking about highway culverts and the potential for Indian treaties to significantly affect the state’s budget. It’s possible that the Legislature could soon face a new budget problem.

An old culvert on Johnson Creek carries water under Viking Way, a former state highway near Poulsbo.
Kitsap Sun file photo

I revived the long-running court story in Sunday’s Kitsap Sun, where I reported that a legal assistant in U.S. District Court suggested that the presiding judge could issue a ruling in the early part of this year.

If you’ve been around the Northwest for long, you probably know that the landmark Boldt decision upheld the right of tribal members to fish “in common with” other citizens of the region. Boldt’s decision, upheld by the U.S. Supreme Court, held that the fairest way to share the limited fishery resource was to apportion the harvest equally between tribal and nontribal fishers.

The ruling was later extended to shellfish, so now state and tribal managers work in concert to establish seasons for fish and shellfish, as they have for years.

But Boldt said something else in his ruling that has far greater implications in today’s modern world. The federal judge said the state has a duty to protect the natural resources within its borders, so that fishing rights protected by the treaties would have true value for the future.

The extent to which treaties may be used to protect the environment has never been tested. But the so-called culvert case, filed in 2001, was a first step in this direction.

From the beginning, the importance of the culvert case was recognized by both sides. In a joint statement issued at the time of the legal filing, Gov. Gary Locke and Attorney General Chris Gregoire said the case could have impacts far beyond the issue of culverts:

“A favorable ruling for the tribes could impose a duty that may affect other public roadways, public facilities and lands, and even the regulation of land-use and water. We don’t believe the treaties were intended to displace the state’s authority to plan, schedule and carry out culvert repairs and replacements or any other such natural resource management or regulatory action.”

It’s interesting now to read a story I wrote in January of 2001 to see the fears expressed by state officials at that time.

The state eventually lost the case, and the feared “duty” was confirmed by U.S. District Judge Ricardo Martinez. He ruled that the treaties require the state to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.”

The state and tribes entered into negotiations, but they were unable to come to terms on a time schedule for fixing the culverts. Other issues surrounded construction standards to ensure that the culverts were of adequate size and design for the affected streams.

After two years, the tribes decided to give up on negotiations and go back to court so that the judge could impose deadlines for culvert replacement.

At that time, Jeff Koenings, former director of the Washington Department of Fish and Wildlife, testified that spending much more money on culverts could take away from more important restoration efforts. (Tim Klass, reporter for the Associated Press, covered the hearing while I was on vacation.)

The last oral arguments were heard in June of 2010, and no ruling has ever been issued.

I’ll post links to past stories and blog entries below if you’d like to review the history of the culvert case. But it’s important to consider that if the duty on the state is upheld, federal courts could order the state to spend millions of dollars more to address the culvert problem.

But why would things end there? The same duty would apply to culverts owned by city and county governments and probably private property owners. The same duty could have implications for all forms of development throughout salmon country.

I know that treaty rights do not sit well with some people. Every time I write anything about rights retained by the tribes for more than 150 years, my stories collect reader comments about how this treaty thing is unfair and does not comport with the American Way. I get the feeling that some people wish treaty rights would just go away or that somehow our state and local officials would simply ignore the tribes.

Well, I can’t say that such change is likely, given the position of our legal institutions, but there are two ways to make the issue go away. First, the courts could reverse their stance by placing certain limits on treaty rights.

Second, Congress could abrogate the treaties or simply pass new laws ignoring them. But throughout history such attempts have rarely been successful, because lawmakers are reminded that the treaties were signed with the full faith and obligation of the United States. Though the treaties were signed in another era, Congress has maintained its obligation to a greater or lesser extent through all these years.

Personally, I wish people would keep these issues in mind when they write their comments, for their words can be hurtful. After all, Native American people alive today are no more responsible for the agreements made long-ago than any of us. As with any group, some members have abused their rights and privileges — and we can discuss those issues. But tribal members as a whole should never be blamed for simply exercising their rights.

Previous stories regarding the culvert case:

Culvert case remains unresolved after three years, Jan. 5, 2013

Tribes Ask Judge to Speed Up Repair of State’s Culverts, AP, Oct. 13, 2009

Salmon and Culverts at Heart of Legal Battle Between Tribes, Washington State, March 21,2009

Salmon Ruling Has State Pondering Highway Culverts, Aug. 27, 2007

Tribes file lawsuit to force a culvert operation, Jan. 18, 2001

Watching Our Water Ways entries

Culvert case about treaty rights could be a new landmark, Oct. 20, 2009

Fixing culverts is the next state-tribal legal battle, March 23, 2009

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The final report on how salmon fisheries may affect Puget Sound’s endangered killer whale population has been released by a seven-member independent panel of U.S. and Canadian experts.

Download “The Effects of Salmon Fisheries on Southern Resident Killer Whales” (PDF 1.8MB)

It appears that the findings of the report are substantially the same as what I reported in a Kitsap Sun story on May 6. If you haven’t read the story, I think you will find all the comments interesting.

The next step will be for NOAA officials to issue recommendations from the report. In light of the findings and the uncertainty about the effects of reduced fishing, it seems likely that more studies will be proposed rather than an immediate adjustment to harvest.

I’ll continue to follow this story through the public review process, which is planned for early next year. Updates and related documents can be found on NOAA’s website.

The management plan for Puget Sound chinook fisheries will remain in effect through next year, after which time it will need to be updated in consultation between state and federal agencies. Chinook are a “threatened” species under the Endangered Species Act. See NOAA’s webpage, “Puget Sound Chinook Resource Management Plan.”

You may be interested in older studies and policy documents by the Washington Department of Fish and Wildlife. Go to “Comprehensive Management Plan for Puget Sound Chinook: Harvest Management Component.”

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From childhood, U.S. Rep. Norm Dicks was destined to become an advocate for salmon and ultimately a champion for the entire Puget Sound ecosystem, according to recent comments from his family and friends.

Norm Dicks on a fishing trip in 2010.
Photo courtesy of Pacific Northwest Salmon Center

Most people know that Norm — whose home lies in southern Hood Canal — will leave office at the end of this year. Recognizing his efforts on behalf of salmon, the Pacific Northwest Salmon Center recently named him to its “Wild Salmon Hall of Fame.”

Neil Werner, executive director of the salmon center, said Norm embodies all the criteria for hall of fame inductees, such as a passion to restore wild salmon, a willingness to share knowledge and much success in making things happen. Listing the criteria, he said, is like describing Norm Dicks himself.

I won’t list all the accomplishments that Neil cited during an induction ceremony two weeks ago, but they included Norm’s leadership in obtaining congressional funding for a variety of programs to restore salmon in Puget Sound, to heal the Puget Sound watershed (including federal lands) and to increase our understanding of how the ecosystem works.

As a result, salmon have regained access to 900 miles of stream habitat, including the nearly pristine watershed above two dams on the Elwha River.

“We will see the benefits of what he has done for an awfully long time, if not in perpetuity,” Neil said.
(more…)

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Many things have been written through the years about Tribal Journeys, an annual event that rekindles a feeling of humanity among tribal members and between tribes. The event stirs an awareness of cultural and spiritual connections for those who participate.

Erica Hankin prepares to board a canoe in a welcoming ceremony at Point Julia. / Kitsap Sun photo by Meegan M. Reid

Tribal Journeys includes many personal stories. In an article in today’s Kitsap Sun, reporter Tad Sooter helps us understand the profound effect the journey has had one individual.

Tad’s story is about Erica Hankin, a 28-year-old member of the Port Gamble S’Klallam Tribe who had been in and out of drug court trying to find a new direction for her life.

Barbara Jones, prevention coordinator for her tribe, was quoted as saying:

“You can’t take something away without taking something back. What I’ve seen with the canoe journey is that void is filled, and they’re finding themselves.”

Tad’s story, which describes Erica’s personal struggle, helps us understand how Tribal Journeys can make a real difference to a degree I have never read before.

Other stories about Canoe Journeys I’ve found revealing, along with slide shows and a descriptive video, below right, that was produced during the journey to Suquamish in 2009.

July 21, 2012: “Paddling on a journey of healing.”

July 20, 2012: “Seafood bash awaits tribal canoeists at first stop,” accompanied by slide show.

April 25, 2011: “After 10 years of waiting, Suquamish family gets its own cedar canoe.”

July 13, 2010: “S’Klallams Play Host as Paddlers Take a Break from Their Journey,” accompanied by slide show.

Aug. 3, 2009: “Suquamish Welcome Thousands Ashore After a Long Journey,” accompanied by slide show.

For more background on Tribal Journeys, recounting history and providing information for people inside and outside the event, visit the Tribal Journeys Blog.

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Forecasts for Puget Sound salmon runs call for lower returns this year compared to last year, but officials with the Washington Department of Fish and Wildlife are emphasizing “promising” chinook fishing off Washington’s coast and Columbia River.

Each year, sport fishers line the banks of the Skokomish River as they try to catch the prized chinook salmon. / Kitsap Sun file photo

Preseason forecasts were released yesterday, launching the North of Falcon Process, which involves state and tribal salmon managers working together to set sport, commercial and tribal fisheries. Federal biologists and regulators keep watch over the negotiations to ensure compliance with the Endangered Species Act.

For a complete schedule of meetings leading up to final decisions the first week of April, go to the WDFW’s North of Falcon page.

With regard to fishing opportunities, Doug Milward, ocean salmon fishery manager for the agency, had this to say in yesterday’s news release:

“It’s still early in the process, but we will likely have an ocean salmon fishery similar to what we have seen the last two years, when we had an abundance of chinook in the ocean but low numbers of hatchery coho.”

(more…)

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Flood control is no longer a primary objective of federal restoration work on the Skokomish River — but improving the ecosystem is likely to reduce flood problems for people who live in the valley.

The Skokomish Watershed Action Team (SWAT) surveys an area where the Skokomish River has wiped out all vegetation and left a massive gravel bar.
Photo by Steve Zugschwerdt

We don’t need to be reminded that the Skokomish is the most frequently flooded river in the state. Although I’m not sure how soon another river might take over that dubious distinction, it’s easy to see that a lot of time and money is being spent to get the river back to a more natural condition.

The Army Corps of Engineers, known for massive projects such as dikes, dams and dredging, won’t be adopting those sorts of projects for the Skokomish River.

Jessie Winkler, Skokomish project manager for the Army Corps of Engineers, explained it this way:

“Clearly, flooding is a problem in the basin. But because of limited residential and commercial activity, it would be very difficult to justify a flood-control project. In order to be justified as a federal project, the economic benefits must be greater than the cost.”

For further explanation, check out my story in Monday’s Kitsap Sun.

The good news is that the Corps has not turned its back on the Skokomish. In fact, the river is considered so important to the Hood Canal region that the agency is considering some large-scale projects focused on environmental restoration — including possibly relocating Skokomish Valley Road.

Other interesting ideas include creating sediment traps to capture gravel in selective locations, relocating existing dikes to create a wider river channel, forming new side channels to relieve flow on the main river and even aeration pumps to boost oxygen levels in Hood Canal.

Many of the projects designed for ecological improvement will also reduce the flooding problems.

A report, scheduled to be released in late spring or early summer, summarizes all information collected so far in the $4.7 million study of the Skokomish River watershed. The report will cover current ecological conditions, future ecological conditions without restoration and a list of potential restoration projects — including preliminary design, estimated costs and ecological benefits, Winkler told me.

Potential projects are only conceptual at this point, though experts have begun to look at locations along the river where different types of efforts may be fruitful. Further study will narrow the list of to a plan to be submitted to Congress for funding.

The upcoming report will begin to explore which of the following actions are most likely to succeed in specific locations:

• Remove or breach levees/dikes
• Construct setback levees/dikes
• Create salmon spawning habitat
• Reconnect wetlands, side channels, backwater areas, and tributaries
• Substrate modification
• Install aeration or oxygenation system in Annas Bay
• Reconnect dendritic channels in estuary
• Large woody debris
• Engineered Log Jams
• Fish passable weir
• Channel stabilization
• Riverbed and wetland vehicle exclusion
• Enhance vegetation – riparian & estuarine
• Control invasive species
• Channel rehabilitation or new channel creation
• Selective gravel removal on gravel bars
• Spot-dredge
• Sediment trap
• Culverts: a) add; b) remove; c) replace; d) upgrade
• Road modifications
• Rehabilitate bank lines
• Cool water diversion to Annas Bay

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Jay Manning, who resigned in June as Gov. Chris Gregoire’s chief of staff, says he is ready to charge back into work as a private lawyer, after spending the summer hiking and mountain biking throughout the Northwest.

Jay Manning

Manning, 53, a native of Manchester in Kitsap County, returned today to his old law firm, an environmental practice that now bears the name Cascadia Law Group. One thing to know about Jay is that environmental issues have always been a central part of his life.

Jay took some time to talk with me today about his reasons for leaving state government and his hopes for the future.

“I had sort of run out of gas,” he confessed. “Although others disagreed, I thought I was not performing as well as I should be, such as my ability to solve problems.”

He said he was beginning to worry about his financial condition, with a son in college and retirement staring him in the face. It was a factor he mentioned in a going-away e-mail to his staff. “There was nothing dire there,” he told me, “but it was a concern.”

Although it may be a cliché, it seems to me that Jay was also thinking a great deal about his family life. His wife, a teacher, had been doing double-duty: keeping the home fires burning while going to work every day. During Jay’s time in state government, his family time was more limited.

“It was time to put myself back as an active member of the family, and it has been so much fun to do that,” he said. “Since July 15, I have really played outside and hung out with family and friends. I have my energy level back.”

As he traveled about the Northwest, Jay said he has come to appreciate the splendor of this region even more. He now lives in Olympia.

Meanwhile, Manning has considered various jobs, including prospects at environmental law firms. He settled on Cascadia Law Group, which he believes takes a rare approach to environmental disputes.

“Unlike most firms, this one does not let themselves get pigeonholed. In one case, they may be representing regulated business. In another case, it can be an Indian tribe, and in another case an environmental group. I like that they represent different viewpoints.”

Manning’s career path has helped him become a skillful negotiator with an ability to see various sides of a problem. Most issues are not black-and-white, he said. People on all sides have viewpoints that deserve respect.

After graduating from the University of Oregon Law School in 1983, Manning joined the Washington State Attorney General’s Office, where he and seven other lawyers represented the Department of Ecology.

When Chris Gregoire became Ecology director in 1987, Manning became chief negotiator during three years of tough talks with the federal government over Hanford cleanup. For a time, he went into private law practice and served on the board of the Washington Environmental Council.

When Gregoire became governor, she quickly named Manning to head up the Department of Ecology, where he served for more than four years before she asked him to become her chief of staff in October 2009.

Manning was grateful. “But for me, it sucked the energy out, in a way the Ecology job didn’t,” he said. “I knew the chief of staff job was hard, but until you’re sitting in that chair, you don’t know how you’ll react to it.”

Manning says his days as a trial lawyer are probably over. He anticipates working on management and public-policy issues, such as controversies over water resources in Eastern Washington. He said he would not be surprised to find himself lobbying for legislation at some point.

He also discusses how he might help environmental groups, either professionally or as a volunteer.

“I’m excited to work on energy efficiency, restoration of Puget Sound and some really exciting water projects on the east side of the state,” he said.

As Ecology chief, Manning headed up the state’s Climate Action Team, and I was surprised that he didn’t mention that specifically as a concern.

“I am concerned,” he told me, “but I don’t talk about it as a climate issue. It’s about making your home and business more efficient. You make a more comfortable place to live and your heating bill goes down. We talk energy efficiency, and climate is smack dab in the middle of it.”

The need to reduce greenhouse gases is clear, he said, but the term “climate change” divides people in ways that “energy efficiency” does not.

I asked him if “energy efficiency” conveys the appropriate sense of urgency about a problem that has our government tied in knots.

“That’s a good point,” he said. “My background would tend to push me toward a strong regulatory response. But I don’t think that is doable now.”

Does he think he’ll ever venture back into politics?

“I would never say ‘never,’ but I am really going to focus on being successful with this firm Cascadia. I saw up close what it takes to be governor. It is hard, and sometimes it is completely unreasonable. There is a big personal sacrifice to be made. Right now my focus is on this new job.”

Cascadia Law Group’s website describes the practice this way:

“Our clients come to us because we solve problems. We set out first to understand each client’s objectives. We then apply our knowledge of the law, persuasive skills, political acumen, and creative thinking to attain those goals. We have successfully helped our clients resolve many of our region’s most difficult environmental issues.”

I’ve talked before about how Jay’s growing up in Kitsap County shaped his concerns for the environment. Check out previous comments on Waterways from Oct. 5, 2009, and Feb. 17, 2008. I wrote a profile about Manning for the Kitsap Sun in February 2008.

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