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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UPDATE, March 13, 2013, 8 p.m.
Some people have asked me about spending for salmon in Nevada, as Sen. McCain mentions in his news release about wasteful spending. While it is true that Nevada became eligible for funding in 2009 (based on the understanding that salmon once migrated to the area in pre-settlement times), I can’t find anything that says Nevada has ever gotten any salmon money. Check out the graph I’ve posted at the bottom of this page, or download “Report to Congress: Pacific Coastal Salmon Recovery Fund, 2000-2010.”
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U.S. Sen. John McCain has thrown together a list of “egregious pork-barrel projects” found in the Democrats’ proposed spending bill to avoid a government shutdown. To my surprise, his list is topped by funding to restore Northwest salmon runs.

In a news release, McCain said he couldn’t understand why such funding wasn’t cut from the proposed continuing resolution to fund the government until the end of the fiscal year.

The news release says salmon restoration was a program “that even President Obama mocked in his 2011 State of the Union address.”

Of course, those of us who live in salmon country know that Obama has always supported salmon restoration. The president’s budgets always include dollars for salmon, though the levels of funding were often bolstered by former Rep. Norm Dicks of Belfair with the support of other Northwest delegates to Congress.

It is true that Obama joked about redundancies in the administration of natural resources. He found it funny that one agency administers salmon when they are in freshwater and another administers salmon when they are in saltwater. His joke was a little off-base, as I pointed out at the time, but he was making a serious point about duplication in government. See Water Ways, Jan. 25, 2011. He was not, however, speaking about the value of salmon restoration.

While listening to the radio this morning, I was kind of shocked to hear McCain scoffing about spending money for salmon recovery. I understand the desire to cut the federal budget, but I’m more accustomed to hearing people talk about the need to find more money for ecosystem restoration in the face of severe budget problems.

If you recall, one of the greatest disappointments of former Gov. Chris Gregoire was that she couldn’t find more money to fund Puget Sound recovery during the ongoing budget crisis. Here’s what she told me before she left office:

“I think we have held our own and made some improvement, but not the improvement we should have. We have to kick it up. The population continues to grow. We’re going to have to kick it up or we are going to lose ground. I’m not proud of the fact that we are kind of treading water right now.” (See Water Ways Jan. 30, 2013.)

Gregoire and others have talked about some kind of permanent funding source, something they call a “flush tax” in the Chesapeake Bay area. And we know that funding to restore salmon is coordinated with the effort to avoid ecological collapse in Puget Sound and throughout the Northwest.

I understand that McCain has no stake in what happens to our Northwest salmon, and I would not be surprised if he wanted to cut this money. But how can he consider the effort to save salmon from extinction to be a total waste, worse than military projects that even the military does not want?

John Bennett of “Defense News” has more to say about this topic (along with an overload of puns) in his blog “Intercepts.”

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It was great to see more than 100 people turn out Satuday to remove weeds at Salmon Viewing Park on Chico Way. Check out my story in Sunday’s Kitsap Sun.

Dan Mullen and his daughter Hailey, 7, remove brush last Saturday along Chico Creek in Salmon Viewing Park.
Kitsap Sun photo by Larry Steagall

Some people came out to do a little volunteer work and get some exercise. Others had a special connection to this undeveloped park property on Chico Creek. And others wanted to get in on the ground floor of an effort to transform this overgrown property into a splendid park.

It is too early to say how this park will look a few years from now, but most everyone wants to keep it natural. Trails, interpretive signs, a couple viewing platforms and some picnic tables are being considered. I discussed the plans briefly in a story on Jan. 27.

Did I mention that this park is one of the best places to view salmon on the Kitsap Peninsula? I list it prominently on my salmon-viewing map and encourage people to visit this spot throughout the salmon-spawning season.

The old culvert under Golf Club Road.

One thing being discussed at Saturday’s outing was the likelihood that a corner of this park would be needed for a new bridge to replace a culvert under Golf Club Road. The culvert, which impedes the migration of adult salmon, serves the only road that goes up to Kitsap Golf and Country Club. The county will save money by building the new bridge before taking out the old culvert.

Planners tried hard to avoid construction of a bridge altogether. One idea was to build a road that connects with Chico Way on the south side of the Chico Way bridge. Such a road would eliminate the need for Golf Club Road and allow the culvert to be removed. But planners could not find a route for a new road that would work for local residents and not do extensive damage to wetlands in the creek’s floodplain.

The new bridge will cut off a corner of Salmon Viewing Park.

Losing a portion of the park to build a new bridge sounded like a bad thing until I talked to Steve Heacock of the Kitsap County Department of Community Development. Steve told me that planners are working on a design that would allow a trail to be built from Salmon Viewing Park under the new bridge, providing access to a salmon viewing area on the north side.

Furthermore, the bridge itself could include a viewing platform to watch salmon from above.

To span the creek, designers have proposed an arch design using precast concrete pieces that span the creek with extra room for the stream to alter its channel and overflow into its floodplain, Steve told me. The arch design, called BEBO by the company that holds the trademark, is expected to keep the cost of the new bridge within reason. County officials are seeking grants to complete the design of the bridge and move on to construction.

The artist rendering below is just one idea provided by the engineers who did the preliminary design. The plan could be altered for a more natural look.

One possibility for the new bridge over Chico Creek on Golf Club Road.

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The little streams and tributaries on the Kitsap Peninsula and elsewhere in Puget Sound are destined for special attention under a proposal to designate critical habitat for Puget Sound steelhead. See my story in today’s Kitsap Sun.

Acoustic tags help researchers track the movement of steelhead in Puget Sound.
Kitsap Sun file photo

When it comes to endangered and threatened species, most of the attention has been given to Puget Sound chinook, which migrate to the larger rivers and often spawn in mainstem waters and larger tributaries.

As a reporter, I’ve also paid attention through the years to Hood Canal summer chum, which come into the streams along Hood Canal in the late summer and early fall. They generally spawn in the lower part of the streams, because water has not yet arrived to fill upstream tributaries.

Steelhead are an entirely different kind of fish, coming into our local streams in the winter months and swimming upstream as far as they can go. Steelhead may not die after spawning, so they can repeatedly return to spawn again and again.

With adequate rains, there is almost no place on the Kitsap Peninsula where steelhead cannot go. In that respect, they are similar to coho salmon, a fall spawner that remains on the borderline for listing under the Endangered Species Act. Many biologists tell me that protections for steelhead will go a long way to protecting our depressed coho runs as well.

What is needed more than anything is more research on the ecological values of the smaller streams on the Kitsap Peninsula and South Sound region. Where have steelhead been found historically, and what can we do to improve the habitat for them?

On the positive side, it is often easier to fix the smaller streams. Culverts can be replaced, side channels created and streamside vegetation planted, all at less cost than on our major rivers.

On the other hand, given our tight state and federal budgets, we are not likely to see more money for salmon and steelhead restoration. We’ll probably have to spread the existing dollars further. In fact, I’ve been told that some people in chinook territory have tried to slow down the steelhead-recovery effort, because it will mean less money for chinook recovery. And they may have been successful.

Puget Sound steelhead were listed as “threatened” nearly five years ago. The Endangered Species Act calls for designating critical habitat within one year of the listing, but NOAA concluded that the designation was “not determinable” at that time. Now, more information is available, the agency says.

Elsewhere, five populations of West Coast steelhead were listed as “threatened” in August 1997, and four others were listed in March 1998. Critical habitat for all nine listed species of steelhead was proposed in February 1999 and completed a year later. (Their status was later reconsidered, which led to the official listing date actually coming after designation of critical habitat.) As a result of a lawsuit, the court scheduled the deadlines for those steelhead.

Biologists are now working on a recovery plan for Puget Sound steelhead in consultation with local governments throughout the region. The ESA does not provide a firm deadline for approving a recovery plan, although federal agencies attempt to get them done within a few years after listing.

More information can be found on the website “Critical Habitat for Lower Columbia River Coho & Puget Sound Steelhead.”

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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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When it comes to salmon restoration, victories often come in small steps, one stream at a time. Never let anyone tell you that small streams don’t count.

Chum salmon return to Cooper Creek for the first time in years. / Photo by Joe Michael

One small, but inspiring, stream is Cooper Creek, which drains into the head of Eagle Harbor on Bainbridge Island. The little stream saw its first return of chum salmon this year following a long absence because of a blockage caused by a water-diversion dam. Get the larger picture from Tad Sooter’s story in the Kitsap Sun.

Only about 10 fish came back this fall, said Wayne Daley, a biologist who assisted with the release of 15,000 fry each year over the past four years. Still, 10 fish is a start, he told me, and it’s better than most years, going back for decades.

“I’m very satisfied,” Wayne said. “I know that some folks feel we should have had a lot more fish, but it demonstrates to me that we can do projects like this. This was a wonderful educational tool.”

Given that most of the work done was by volunteers, the Cooper Creek project was not expensive. The stream is rather short, and spawning gravel is limited, but the hope is that the run can be restored without further human intervention.

“We’ll see what happens after four years of supplementation,” he said.

The 10 salmon that made it back are true survivors — from their early days, when they somehow avoided predators in the stream, to four years of swimming in the ocean, to finally avoiding fishing nets and harbor seals on the last leg of their journey back into the stream.

A harbor seal follows the chum salmon run right up to the mouth of Cooper Creek. / Photo by Joe Michael

“One thing that was fascinating was to watch when these fish first showed up,” Wayne said. “There were not only fish; there were harbor seals that followed them right up to the gas station (near the mouth of the stream).”

When I hear about harbor seals chasing salmon, I always wonder why there aren’t more transient killer whales chasing the seals. It’s a dog-eat-dog world, with dog salmon (chum) on the menu.

As in many streams throughout Puget Sound, volunteers have taken Cooper Creek to heart, providing a new start for a long lost salmon run.

I could make a list of small streams where groups of individuals are making a difference in adding to the mass migration of chum, coho, pink and chinook salmon, not to mention steelhead. I would enjoy it if you would pass on stories about grass-roots projects that are making a difference for salmon and other wild creatures.

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This year’s chum salmon run is nearly over, and a fair number of fish have made it back to spawn and die in our local streams. As occurs each year, the odor is a dead giveaway.

In honor of those salmon who gave their lives so that other creatures could live, and with recognition to the people who endure the stench of decaying fish, I’ve rounded up eight silly jokes about smelly things, one about a dead fish and two about fishing.

1. Yo’ Mama is so stanky, she used Odor-Eaters and completely disappeared.
Source

2. Q: Why did Sally bring her skunk to school? A: For show-and-smell!
Source

3. Your nose runs and your feet smell. You must be upside down.
Source

4. You stink so bad you make Right Guard turn left, Speed Stick slow down, Secret obvious, and Sure confused.
Source

5. True story from Reader’s Digest: While filling up at a gas station, I accidentally spilled gasoline on my shirt. When I went inside to pay, I noticed a woman crinkling her nose. Embarrassed, I tried to put her mind at ease. “If you smell gas,” I said, “it’s me.” — Joseph Bozulich

6. Antijoke. Q: What is red and smells like blue paint? A: Red paint.
Source

7. A young couple were on their honeymoon. The husband was sitting in the bathroom on the edge of the bathtub saying to himself, “Now how can I tell my wife that I’ve got really smelly feet and that my socks absolutely stink? I’ve managed to keep it from her while we were dating, but she’s bound to find out sooner or later that my feet stink. Now how do I tell her?”
Meanwhile, the wife was sitting in the bed saying to herself, “Now how do I tell my husband that I’ve got really bad breath? I’ve been very lucky to keep it from him while we were courting, but as soon as he’s lived with me for a week, he’s bound to find out. Now how do I tell him gently?”
The husband finally plucks up enough courage to tell his wife and so he walks into the bedroom. He walks over to the bed, climbs over to his wife, puts his arm around her neck, moves his face very close to hers and says, “Darling, I’ve a confession to make.”
And she says, “So have I, Love.”
To which he replies, “Don’t tell me, you’ve eaten my socks.”
Source

8. It was a particularly tough football game, and nerves were on edge. The home team had been the victim of three or four close calls, and they were now trailing the visitors by a touch-down and a field goal. When the official called yet another close one in the visitors’ favor, the home quarterback blew his top.
“How many times can you do this to us in a single game?” he screamed. “You were wrong on the out-of-bounds; you were wrong on that last first down; and you missed an illegal tackle in the first quarter.”
The official just stared.
The quarterback seethed, but he suppressed the language that might get him tossed from the game. “What it comes down to,” he bellowed, “is that you STINK!”
The official stared a few more seconds. Then he bent down, picked up the ball, paced off 15 yards, and put the ball down. He turned to face the steaming quarterback. The official finally replied, “And how do I smell from here?”
Source

9. Little Tim was in the backyard filling in a hole when his neighbor peered over the fence interested in what the cheeky-faced youngster was doing. He politely asked, “What are you up to there, Tim?”
“My goldfish died,” replied Tim tearfully, without looking up, “and I’ve just buried him.”
The concerned neighbor said, “That’s an awfully big hole for a goldfish, isn’t it?”
Tim patted down the last heap of earth and then replied, “That’s because he’s inside your cat!”
Source

10. “I caught a twenty pound salmon last week.”
“Were there any witnesses?”
“There sure were. If there hadn’t been, it would have been forty pounds.”
Source

11. Alex had a terrible day fishing on the lake, sitting in the blazing sun all day without catching a single one. On his way home, he stopped at the fishmonger and ordered four rainbow trout. He told the fishmonger, “Pick four large ones out and throw them at me, will you?”
“Why do you want me to throw them at you?” Asked the salesman.
“So that I am able to tell my wife, in all honesty, that I caught them,” said Alex.
“Okay, but I suggest that you take the salmon.”
“Why’s that?”
“Because your wife came in earlier today and said that if you came by, I should tell you to take salmon. That’s what she’d like for supper tonight,” replied the fishmonger with a grin.
Source

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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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When 60 students from Central Kitsap High School took off in double kayaks to look for jumping salmon, they had no idea how the changing weather would make the trip more exciting.

Bill Wilson, who teaches environmental science, organized Tuesday’s trip on Dyes Inlet near Silverdale. Lead guide Spring Courtright of Olympic Outdoor Center shares the story in her words.

Reminder: Free stream tours from land are scheduled for Saturday. See the story I wrote for Tuesday’s Kitsap Sun.

Wind pushes the kayaks along, as 60 Central Kitsap High School students return to Silverdale Tuesday after watching jumping salmon. / Photos by Spring Courtright

By Spring Courtright
Program Director, Olympic Outdoor Center

At 9 a.m. on election day, anyone peering through the fog at Silverdale Waterfront Park would have seen 35 bright kayaks lined up on the beach and 60 high school students preparing to paddle.

Central Kitsap High School environmental science students study salmon in class, then are given the option to paddle with jumping salmon on an annual Salmon Kayak Tour with the Olympic Outdoor Center (OOC). For the last two years, 60 students have jumped on the opportunity.

This trip started about 10 years ago with about half that number of students. I have been one of the lead guides for nearly all of these tours. It’s always an adventure, but this year was one of the more memorable trips because of the beautiful clouds and quick change in weather.
(more…)

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Well, we got it done, at least for now. I’m talking about a project that included a total of 27 new videos and an interactive map, all to help people observe the annual migration of chum salmon on the Kitsap Peninsula.

This project is one reason I have not written as many stories or blog entries as I normally would have over the past few weeks.

This is the fourth remake of the salmon map, going back to the first map published in the newspaper in 1995. This year, reporter Amy Phan produced the videos, adding many more location shots. We’ve also added an overview video describing the project and how to use the map (below).

Because most of the filming was done before the rains arrived, streamflows in the videos are lower than what you will see if you go out now. If I had it to do again, I would have shot more video of salmon last fall. We’ll probably substitute some new shots of salmon in the streams.

You’ll find my story about the beginning of salmon season in today’s Kitsap Sun. The web address for the salmon map is easy to remember: www.kitsapsun.com/salmon.
(more…)

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