Kitsap Sun: Kittyhawk Drive culvert finally removed for fish

Aug 28th, 2014, Northwest Indian Fisheries 

 

The Kitsap Sun (subscription required) reported on the removal of a partial fish-blocking culvert on Chico Creek, under Kittyhawk Drive. Under the direction of the Suquamish Tribe, the 50-year old culvert is being removed, fully allowing the mouth of the estuary to return to a more natural state.

From the story:

Removing the Kittyhawk culvert is an important step in restoring the estuary, according to Small and Tom Ostrom, of the Suquamish Tribe, who helped pull together more than $2 million for the project. Replacing the freeway bridge, they said, will lead to an even greater improvement in salmon habitat, supporting increased populations of chum, coho and steelhead.

Work on the Kittyhawk project began earlier this summer with construction of a new driveway punched in from Chico Way. The driveway has a gravel surface, but it will be paved later this year. The driveway provides a new access for residents who previously crossed Chico Creek to get home.

Along with the culvert removal, the project will remove 400 feet of Kittyhawk Drive, built on a raised roadbed. An estimated 10,000 cubic yards of soil will be pulled out of the estuary where it was placed to build the road. That’s more than 1,000 average dump truck loads.

Before the end of September, Chico Creek should be able to flow smoothly out of the freeway culvert and down a gradual slope into Chico Bay, according to John Gaffney, water resources engineer for Anchor QEA. Log structures will be buried downstream of the remaining culvert to ensure that the stream does erode vertically, but Gaffney does not expect that to happen.

Stream restoration in the Port Susan watershed

 

Before the culvert was restored.

After the culvert was restored. Photo by Brett Shattuck

 

Natural Resources department seeks out important streams that are in need of restoration.

By Monica Brown, Tulalip News Writer

TULALIP, Wa. -In an effort to boost salmon populations and abide by treaty rights, the state of Washington has been court ordered to fix problem culverts, which prevent salmon from accessing integral streams. Tulalip’s Natural Resources department has been helping the State’s effort by repairing one culvert per year for the last few years. Greenwood creek in the Warm Beach community, the most recent culvert repaired by Natural Resources, was found to be an important stream for juvenile salmon and acts as a nursery prior to entering the ocean.

            “We try to repair one a year or every other year. It’s something we do when we have time on the side,” said Brett Shattuck of Tulalip’s Natural Resources. Brett works as a forest and fish biologist, a position that doesn’t center on stream restoration. Together as a department though, they research and find vital streams that require repair yet fall out of state jurisdiction which would require the state to repair according to the court order. While the state owns and is responsible for 1,521 culvert barriers, they have been court ordered to only repair just fewer than 1,000 of those within the next 17 years, a feat which the state implies that they do not have enough funds for in order to complete on time.

Brett includes that, “because most streams on the reservation are either naturally non-salmon bearing, or are utilized for hatchery operations and do not have wild salmon access for that reason,” they look beyond the reservation boundaries to find nearby, integral streams in need of repair that would otherwise be ignored. “These streams are really important to fish and a lot of them have degraded,” explained Brett. There are streams that contain salmon on the reservation including Quilceda Creek, Sturgeon Creek and Coho Creek, but these streams already have, or are in the planning stages, of being repaired by Natural Resources. 

Greenwood Creek is located in the Port Susan watershed, and as a tidal stream, it is similar to an estuary where salt water tides flow in and mix with the out flowing fresh water. During salmon monitoring of one small portion of Greenwood Creek, it has been recorded to support over 700 salmon in various species. Brett explains, “most of the fish come from the Stillaguamish River and they come in here to avoid predators, to have refuge and to find food.” The stream, mainly utilized for salmon rearing also provides an extra half mile of stream for Silver and Coho spawning.

Many streams located within development areas have degraded environmentally and structurally. Stream area diminishes due to roads, invasive plants change habitat and inaccessible culverts prevent salmon from traveling further upstream. When a stream is developed, a culvert is placed in the stream to modify it so that it can be crossed over. As per Washington Department of Transportation’s data, many streams statewide are important to salmon spawning and rearing but overtime have become inhospitable; 1,960 out the 3,200 culverts statewide have been identified as fish barriers.

The Natural Resources department has restored this and previous streams through grant funding. The $50,000 in grant funding was obtained from Pacific Coastal Salmon Recovery Fund (PCSRF) to replace the preexisting culvert with one that is more functional and to excavate in order to restore 250ft of the stream. While Snohomish County did not provide funds they did provide in-kind services and materials to the project which match the grant fund in cost from PCSRF.

BeforeBelowCulvertHoriz

Before the culvert was restored. Photo by Brett Shattuck

Federal Court Upholds Tribal Treaty Rights in Culvert Case

Billy Frank

Billy Frank

Source: Northwest Indian Fisheries Commission, www.nwifc.org

OLYMPIA – The state of Washington must fix fish-blocking culverts under state-owned roads because they violate tribal treaty rights, federal Judge Ricardo Martinez ruled on Friday, March 29.

“This is a historic day,” said Billy Frank Jr., Nisqually tribal member and chairman of the Northwest Indian Fisheries Commission. “This ruling isn’t only good for the resource, but for all of us who live here. It will result in more salmon for everyone. This is a great victory for all who have worked so hard to recover wild salmon.”

Martinez issued a permanent injunction requiring the state to repair more than 600 state-owned fish-blocking culverts over the next 17 years to “ensure that the State will act expeditiously in correcting the barrier culverts which violate treaty promises.” Treaty Indian tribes filed the initial culvert case litigation in 2001. The tribes, the United States and the state spent several years trying to settle the case, but were unable to reach agreement.

Tribes reserved the right to harvest salmon in treaties with the United States government more than 150 years ago. That right was upheld in U.S. v. Washington, the 1974 ruling that recognized the tribal right to half of the harvestable salmon returning to state waters and established the tribes as co-managers of the resource with the state.

The injunction was necessary, Martinez ruled, because the state has reduced repair efforts in the past three years, resulting in a net increase of fish blocking culverts. At the current rate, repairs would never be completed, he ruled, because more culverts were becoming barriers to salmon than were being fixed.

“The salmon needs our help now,” Frank said. “Salmon habitat throughout the region continues to be damaged and destroyed faster than we can repair it, and the trend is not improving. This ruling is a step in the right direction.”

Blocking culverts deny salmon access to hundreds of miles of good habitat in western Washington streams, affecting the fish in all stages of their life cycle. State agencies told the Legislature in 1995 that fixing culverts was one of the most cost-effective strategies for restoring salmon habitat and increasing natural salmon production. In 1997 state agencies estimated that every dollar spent fixing culverts would generate four dollars worth of additional salmon production. Recent studies support the state’s findings.

In the ruling Martinez wrote that the state’s duty to fix the culverts does not arise from a “broad environmental servitude” by the state to the treaty tribes, but rather a “narrow and specific treaty-based duty that attaches when the state elects to block rather than bridge a salmon-bearing stream. . .”

“Judge Martinez’s ruling was clear,” Frank said. “Our treaty-reserved right to harvest salmon also includes the right to have those salmon protected so that they are available for harvest, not only by the tribes, but by everyone who lives here.”

Cost estimates provided by the state are higher than the actual repair costs shown in court, Martinez held. He noted that repairs would be funded through the state’s separate transportation budget and would not come at the expense of education or other social services. Costs will be spread out over a 17-year correction program. As highway projects go, the corrections are mostly small.

“The cost will be a small sliver of the State’s two-year $7 billion transportation budget,” Frank said.

The March 29 ruling follows an August 2007 summary judgment issued by Martinez in favor of the tribes, but did not include a remedy to fix the culverts. He encouraged the tribes and state to continue to try and resolve the issue outside of court, but those efforts were unsuccessful.

“We prefer to collaborate with the state to restore and protect salmon and their habitat,” Frank said. “However, the state’s unwillingness to work together and solve the problems of these salmon-blocking culverts in a timely manner left us with no alternative except the courts.”

Tribes’ court win may flow beyond culvert repairs to protect fish

A federal judge has ordered culvert repairs to ensure tribes have fish to catch, as guaranteed by their treaty rights. The ruling could have broader impact on other types of development.

By Lynda V. Mapes, The Seattle Times

A long-awaited tribal fishing-rights decision by a federal judge Friday means the state must immediately accelerate more than $1 billion in repairs to culverts that run beneath state roads and block access to some 1,000 miles of salmon habitat.

The ruling comes out of the landmark 1974 Boldt decision, which upheld the rights of tribes to fish. The ruling Friday by U.S.District Judge Ricardo Martinez in Seattle is aimed at ensuring the tribes have fish to catch.

The ruling could eventually result in other court-ordered restoration work, according to tribal leaders and policy experts.

“This culvert case is a ringing of the bell, OK you got to wake up,” said Ron Allen, chairman of the Jamestown S’Klallam Tribe. “We have to protect and restore the environment while we continue to look creatively for ways to develop new job and industry opportunities.”

Martinez ordered the state departments of fish and wildlife, parks, transportation, and natural resources to accelerate work to remove, replace and repair about 1,000 culverts to help restore salmon runs within 17 years.

The state Attorney General’s Office had not decided as of Friday whether to appeal the case to the 9th U.S. Circuit Court of Appeals.

Martinez ruled in 2007 that Washington was violating tribal treaty rights by failing to protect salmon runs. He ordered the state and tribes to negotiate a schedule for fixing the culverts that block salmon passage to their habitat, but the parties were unable to reach agreement.

Friday’s order set standards and a deadline for the repairs.

While 17 years sounds like a long time, it’s been a dozen years since the tribes in 2001 asked Martinez to find that the state has a treaty-based right to preserve salmon runs and compel it to repair or replace culverts that impede them.

Many of the agencies have a backlog of plugged or failing culverts, the pipes that carry water beneath the state’s roadways.

The state has performed some $55 million in repairs to culverts since 2001, according to the Attorney General’s Office. However, the judge noted in his order that “despite past state action, a great many barrier culverts still exist, large stretches of potential salmon habitat remain empty of fish, and harvests are still diminished.”

Allowing salmon runs to decline further is a fundamental violation of promises made in the treaties of 1854 and 1855, Martinez wrote, under which tribes ceded most of what is present-day Western Washington.

“Governor Stevens assured the Tribes that even after they ceded huge quantities of land, they would still be able to feed themselves and their families forever,” Martinez wrote, referring to Isaac Stevens, Washington’s first territorial governor. “The promise made to the Tribes that the Stevens treaties would protect their source of food and commerce was crucial in obtaining that assent to the Treaties provision.”

While the order signed Friday focused on culverts, it may potentially have broader application to other habitat insults that harm salmon.

“Everyone knows there is a number of issues out there with regard to forestry, farming, development and standards that go along with all those different industries,” Allen said. “This case helps raise those issues on the radar.”

But the tribes’ main objective isn’t for the ruling to threaten the ability to create jobs, build homes and prosper, Allen said.

“It is a balance, so what do we do? It definitely lends itself as a steppingstone to the other issues, saying these are the other problems, and what are we going to do about them. It has to be part of the cost of doing business.”

In the short term, Brian Cladoosby, chairman of the Swinomish Tribe and Association of Washington Tribes, said tribes want to sit down with the state to figure out a schedule and budget to implement the order.

“The tribes have always been, I feel, like in a war, and this is just one of those battles,” he said. “We have to be humble in victory and now hopefully go forward working on a plan with the state to tackle this.”

He called the order a victory not only for tribes, but all of the state’s citizens. “The Creator blessed us with one of the greatest natural resources, and it is enjoyed by people of all colors, not just tribes.”

Robert Anderson, director of the Native American Law Center at the University of Washington School of Law, said it is yet to be seen how far the implications of the order reach into other types of development and habitat protection and repair.

“But this is a legal shot across the bow,” Anderson said, “indicating that more needs to be done to repair habitat and stop further damage.”

Will Stelle, Northwest regional director for the National Marine Fisheries Service, called the order “sobering and significant” because it cements the fact that treaty rights are not only a federal obligation.

Ultimately, the case is about more than culverts, or fish, said Fawn Sharp, president of the Quinault Indian Nation. The tribes want to protect not just a crucial food source, but a way of life, for Indians and non-Indians alike, she said.

“People will look back at this point in history, and I am confident that when the tribes stepped up to do this, they took a critical role in protecting Washington as we know it and the way we live here,” Sharp said.

“That is true for generations to come, and non-Indians will appreciate it, too. There is a common denominator with other residents that share these values.”