19535

Case 2:70-cv-09213-RSM Document 19535 Filed 02/12/2010 Page 1 of 119

1
The Honorable Ricardo Martinez
2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
9 AT SEATTLE

10
UNITED STATES OF AMERICA, et al., No. C70-9213
11 Subproceeding No. 01-1
Plaintiffs, (Culverts)
12
v. PLAINTIFF-INTERVENOR
13 TRIBES‘ CORRECTED POST-
STATE OF WASHINGTON, et al., TRIAL BRIEF
14
Defendants.
15
TABLE OF CONTENTS
16
I. INTRODUCTION. ..............................................................................................................5
17
II. SUMMARY OF PLAINTIFFS‘ PROPOSED REMEDY. ..................................................9
18
III. FACTS. ..............................................................................................................................10
19
A. Salmon And Tribal Salmon Fisheries Are In Trouble. ..........................................10
20
B. Habitat Is The Main Driver Of Fish Abundance. ..................................................12
21
C. Barrier Culverts Cause Serious Harm To Fish Populations And Fish Habitat, And
22 Their Correction Is A High Priority Amongst Efforts To Recover Washington‘s
Wild Salmon. .........................................................................................................14
23 1. There Are More Than 1,000 WSDOT Barrier Culverts In The Case Area,
With More Than Four Million Square Meters Of Salmon Habitat Above
24 Them. .........................................................................................................15
2. State Barrier Culverts Reduce Salmon Production By Preventing Or
25 Delaying Adult And Juvenile Access To Habitat And By Reducing The
Quality Of Accessible Habitat. ..................................................................17
26

PLAINTIFF-INTERVENOR TRIBES‘ 1 KANJI & KATZEN, PLLC
401 SECOND AVE. S., SUITE 700
CORRECTED POST TRIAL BRIEF SEATTLE, WA 98104
No. C70-9213 , SUBPROCEEDING 01-1 206.344.8100
(CULVERTS) FAX: 1.866.283.0178


1 D. Correcting Culverts Is Recognized As An Effective Way To Restore Salmon And
Treaty Fisheries. .....................................................................................................19
2 1. Plaintiffs‘ Witnesses Confirmed The Benefits To Salmon Of Barrier Culvert
Repair. ........................................................................................................19
3 2. The State Acknowledges That Barrier Repairs Are Very Cost-effective And
Essential To Salmon Recovery. .................................................................20
4
E. Elements Of An Adequate Barrier Culvert Correction Program Are Known, But The
5 State‘s Programs Fall Short. ..................................................................................21
1. Summary Of The State‘s Existing Barrier Correction Programs. ..............22
6 2. The State‘s Inventory And Habitat Assessment Process Understates The
Scope Of The State Barrier Culvert Problem. ...........................................23
7 3. Designs That Best Pass Fish And Protect Their Habitat Are Known, But
Inconsistently Applied By The State. ........................................................25
8 a) There Is A Hierarchy Of Design Options From Avoidance Of A
Crossing, To Using Bridges, To Use Of Culverts. ........................25
9 b) Where A Stream Crossing Cannot Be Avoided, Bridges And Stream
Simulation Culverts Are Generally The Best Of Several Design
10 Options In Providing For Fish Passage And Fluvial Processes. ....26
c) Hydraulic Designs Used By The State Fail To Provide Adequate
11 Passage For Juveniles Or To Maintain Habitat-Forming Processes
And Are Prone To Failure When Used To Retrofit Culverts With
12 Fishways. .......................................................................................28
d) The No-Slope Design Is Better Than The Hydraulic Design But Still
13 Fails To Adequately Account For Stream Processes Or Juvenile
Passage At High Flows. .................................................................30
14 e) Despite Universal Support For The Stream Simulation Design, The
State Has Failed To Correct Culverts In A Way That Meets The
15 Stream Simulation Design Standards.............................................31
4. DNR, WDFW, And State Parks Have Committed To Correcting Their
16 Barrier Culverts By 2016; WSDOT‘s Repeated 20-Year Goal For Its
Corrections Has Disappeared. ....................................................................32
17 5. Because Streams Are Dynamic, Insuring Fish Passage Requires Ongoing
Monitoring, Maintenance, Assessment, And Correction. ..........................33
18
IV. THE TRIBES MEET EACH FACTOR OF THE FOUR-PART STANDARD FOR
19 INJUNCTIVE RELIEF. .....................................................................................................35

20 A. The Tribes Have Been Irreparably Harmed By Culverts, And In The Absence Of An
Injunction Future Harm Is Inevitable. ....................................................................35
21
B. There Is No Adequate Remedy At Law For The Injury To The Tribes‘ Treaty
22 Fishing Right Because Of The Incommensurable Value Of Salmon In Tribal History,
Culture, Identity, And Worldview. ........................................................................41
23
C. The Serious Hardships To The Tribes In The Absence Of An Injunction Must Be
24 Weighed Against The Lesser Challenges To The State Should An Injunction Issue.43
1. The Nature And Extent Of State Barrier Culverts Have Caused The Tribes
25 Direct Economic Harm, Contributing Significantly To The Dramatic Decline
Of Tribal Harvest And The Inability Of Tribal Members To Earn A
26 Livelihood By Fishing. ..............................................................................44

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1 2. The Harm To The Tribes From The Loss Of Salmon Is Magnified Because
Of The Enormous Importance Of Salmon And Fishing In Tribal Culture,
2 Ceremony, And Identity.............................................................................48
3. Loss of Fishing Knowledge. ......................................................................52
3 4. Emotional Harm. ........................................................................................53
5. The Financial Hardship The State Alleges Is Not Supported By The
4 Evidence. ....................................................................................................54

5 D. The Public Interests In Upholding The Treaty Right And Creating More Salmon In
Washington Waters Are Paramount.......................................................................61
6 1. Upholding Treaty Rights Is A Public Interest Sufficient To Justify An
Injunction. ..................................................................................................61
7 2. The Injunction Plaintiffs Seek Would Also Advance The Strong Public
Interest In Salmon Recovery. .....................................................................62
8 3. The State‘s Argument That Barrier Correction Will Impede Salmon
Recovery Is Unsupported. ..........................................................................64
9 4. The State‘s Argument That Barrier Correction Will Negatively Impact
Programs Other Than Salmon Recovery Is Also Unsupported. ................68
10 5. The State May Not Use Alleged Conflicts Between Upholding The Treaty
Right and Funding Other State Programs to Negate Treaty Rights. ..........70
11
V. THE TRIBES PROPOSED INJUNCTION IS CAREFULLY TAILORED TO
12 REMEDY THE TREATY VIOLATION AND PROVIDE SIGNIFICANT BENEFITS,
WHILE LIMITING THE BURDEN ON THE STATE AND RETAINING STATE
13 DISCRETION. ...................................................................................................................72

14 A. By Correcting The State‘s Broken Culverts The Plaintiffs‘ Proposed Remedy Would
Directly Address The Violation of Their Federal Treaty Rights and Restore Them to
15 the Position They Would Have Had But For the Violation ...................................73

16 B. The Existence of Other Harms to Treaty Fisheries Does Not Negate The Remedy Of
Barrier Culvert Correction. ....................................................................................76
17 1. This Case Is Limited To State Barrier Culverts, And The Proposed Injunction
Would Effectively Remedy The Harm Caused By Those Culverts. .........76
18 2. An Injunction Requiring Correction Of State Barrier Culverts Is Not
Rendered Inappropriate Or Ineffective By The Presence Of Other Entities‘
19 Barrier Culverts. .........................................................................................79

20 C. The Proposed Injunction Represents The Minimum Intrusion On State Conduct That
Is Compatible With An Effective Remedy For The Violation Of Tribal Treaty
21 Fishing Rights. .......................................................................................................81
1. Granting The Injunction Would Not Challenge The Court‘s Competence Nor
22 Put ―Federalism‖ At Risk...........................................................................82
2. The Court Need Not Find Bad Faith In Order To Issue An Injunction, Or
23 Need It Defer To A State Proposed ―Remedy‖ That Would Perpetuate The
Treaty Violation. ........................................................................................89
24 3. Each Of The Five Elements Required For An Effective Culvert Remedy
Provides Flexibility And Deference To The State. ....................................91
25 a. Compliance With The Treaties Requires That The State Correct All
Its Fish-Blocking Culverts, As Determined By The State‘s Barrier
26 Assessment Method. ......................................................................91

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1 b. The Injunction Should Establish A Schedule For Correction, Which
Reflects The Equities Of Correcting Different Culverts................95
2 i. DNR, WDFW, And State Parks Culverts Should Be Fixed
By July 15, 2016. This Is The Date By Which State Law
3 And Policy Now Call For Their Correction. ......................96
ii. Subject To Two Exceptions, WSDOT Barrier Culverts In
4 The Case Area Should Be Made Passable To Salmon
Within Twenty Years Of Judgment. ..................................97
5 c. The State Should Be Enjoined To Use Bridges And Stream
Simulations Culverts – The Current Best Available Fish Passage
6 Design Science – Except In Emergencies Or In Those Rare
Instances Where Use Of Such Structures Is Not Feasible. ..........103
7 d. The State Should Be Enjoined To Monitor And Maintain Its
Culverts And To Correct Any Newly-Discovered Fish Passage
8 Barriers Within A Reasonable Time. ...........................................107
i. Because Development Of Additional Fish Passage
9 Barriers Is Likely, Periodic Re-Assessment Of Culverts Is
Necessary. The State Currently Lacks Sufficient
10 Programs For Such Re-Assessment. ................................107
ii. The State Should Be Enjoined To Correct Within A
11 Reasonable Time All Its Barrier Culverts Discovered In
The Future. .......................................................................108
12 iii. The State Should Be Enjoined To Undertake Reasonable
Maintenance To Prevent Development Of Fish Passage
13 Barriers, And To Conduct Maintenance In A Manner That
Does Not Interfere With Fish Passage. ............................111
14 e. The State Should Be Enjoined To Monitor Its Implementation Of
The Injunction, Evaluate Whether Its Efforts To Provide Fish
15 Passage Are Effective, And Make Appropriate Corrections In
Response To Such Monitoring And Evaluation. .........................112
16 f. The State Should Be Required To Provide Interested Tribes With
Sufficient Notice Of Its Barrier Culvert Inventory, Assessment,
17 And Correction Activities To Permit The Tribes To Monitor And
Provide Effective Recommendations For Compliance With the
18 Decree. .........................................................................................113

19 VI. CONCLUSION. ...............................................................................................................114

20

21

22

23

24

25
26

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1 I. INTRODUCTION.
2 When Governor Stevens negotiated treaties with the Plaintiff Tribes in the mid 1850s,
3 salmon swarmed Washington waters, and salmon fisheries promised Indian and non-Indian alike an
4
inexhaustible source of food and commerce. Now, the salmon and the treaty fisheries that depend
5
on them are in trouble, and scientists point to degraded salmon habitat as the principal reason. The
6
Tribes recognized this threat in the 1970s, when United States v. Washington was filed, and in
7

8 Phase II of this case advanced the claim that the State‘s degradation of habitat violated their treaty

9 fishing rights. After the District Court declared a broad state duty not to degrade the habitat, a

10 Ninth Circuit en banc panel vacated that decision and directed that further litigation of the State‘s
11
treaty obligations to preserve salmon habitat take place in the context of some particular habitat
12
problem. United States v. Washington, 759 F.2d 1353, 1357 (9th Cir. 1985) (en banc). Plaintiffs
13
took this admonition to heart, and initiated this subproceeding concerning state culverts, which are
14
one of the most destructive, but also most correctable, causes of degraded salmon habitat and
15

16 salmon decline. As the recent trial in this subproceeding showed, culverts have been a daunting

17 barrier to salmon and to salmon recovery for the past fifty years. More than 1,000 state-owned
18 culverts now restrict the passage of salmon into over one thousand miles of freshwater habitat in
19
western Washington.1
20
In 2007, the Court declared that these culverts deprive the Tribes of the fishing rights
21
reserved in the Treaties. Amended Order on Motions for Summary Judgment, p. 12 (Dkt. No.
22

23 18879/392) (―Amended Order‖). This Court found ―that the Treaties do impose a duty upon the

24 State to refrain from building culverts in such a manner as to block the passage of fish upstream or

25
26

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1 down, to or from the Tribes‘ usual and accustomed fishing places.‖ Id. at 12. It further found that
2 ―the right of taking fish, secured to the Tribes in the Stevens treaties, imposes a duty upon the State
3
to refrain from building or operating culverts under State-maintained roads that hinder fish passage
4
and thereby diminish the number of fish that would otherwise be available for Tribal harvest.‖ Id.
5
at 12. The purpose of the recent trial was to answer one question: how should that violation of
6

7 treaty rights be remedied?

8 The Plaintiffs‘ have answered that question by proposing an injunction that would establish

9 which culverts should be made fish-passable, when, and to what standard, and how they should be
10 monitored and maintained to avoid recurrence of the current crisis. Plaintiffs supported the
11
propriety of that injunction with extensive evidence, much of it from state documents and the
12
State‘s own witnesses. The Tribes promised at the start of trial, and have presented, evidence that:
13

14

15 State barrier culverts, sprinkled like a pox over Western Washington, cause severe
harm to salmon, salmon habitat, and salmon fisheries. Broken state culverts have made it
16 harder than ever for the Tribes to achieve the purpose of the treaties—―that they should have
fish, not only now, but forever‖—and have inflicted cultural, personal and economic injury
17 on the Tribes.
18
Correction of the State‘s broken culverts will bring significant ―bang for the buck‖ to
19 the Tribes and the public. No matter what other recovery steps may be taken, the salmon
runs of western Washington will not recover if the culverts continue to block access to
20 freshwater habitat.

21 The best methods to fix the broken culverts are agreed upon by experts for all parties,
and are field-tested and affordable. The agreed approach would use bridges and stream
22 simulation culverts except where emergencies or unusual site conditions make those best
23 scientific solutions infeasible.

24 The State‘s programs to fix its broken culverts are too little, too late. The State uses

25
1
The six species of anadromous salmonids at issue in this case are the Chinook, Chum, Coho, Pink, and
26 Sockeye salmon, and the steelhead. Pretrial Order ( Dkt. No. 19409/614), Admitted Fact 1.2 (hereinafter Adm. Fact(s)).
These six species will be referred to in this brief as ―salmon.‖

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1 inferior designs, lacks deadlines to deal with current barriers, and has no sound plans to
prevent barriers from recurring. If the State‘s programs are not changed, the problem of
2 state barrier culverts will fester for generations to come.
3
Regrettably, the trial showed that the State will not voluntarily change its programs. The
4
State‘s answer to the question, ―what should the Court do to remedy the treaty violation?‖ is simple:
5
nothing. In the State‘s world, its culvert repair programs need no adjustment—no scientific
6

7 adjustments based on increased information, no fiscal adjustments to more efficiently use available

8 transportation resources, and no policy adjustments in response to federal treaty law. In fact, the

9 State insists that any adjustments in its programs will upset the salmon recovery ―applecart‖ and
10 asks the Court to defer to the State‘s decisions whether to fix culverts as part of an overall salmon
11
recovery effort. The State seeks to divert attention from its culverts, insisting that the Court take all
12
salmon recovery efforts into consideration despite the Ninth Circuit‘s admonition against
13
articulating treaty-based habitat duties in a context that broad, and despite the fact that this is the
14

15 ―culverts,‖ not the ―salmon recovery,‖ subproceeding. It argues that any adjustments in its

16 programs will compromise highway safety and sacrifice the welfare of vulnerable citizens by

17 diverting money from social programs. The State proposes that the Court do no more than monitor
18
its existing programs.
19
The State articulated these arguments in its opening statement and pre-trial brief, and
20
promised that the evidence would bear them out. But after calling nine witnesses and introducing
21
more than 120 exhibits, the State did not make good on its promise. The evidence at trial did not
22

23 show an exemplary culvert program, but one dogged by inadequacies and delays. The State‘s key

24 salmon recovery witness revealed that there is no salmon recovery ―apple cart‖ to upset; his vision
25 of a holistic, coordinated, watershed-based salmon recovery program is just that, a vision, not an
26
existing program. Other witnesses testified that improving state culvert corrections would not

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1 undermine recovery efforts in any event. Nor did the State present credible evidence that correcting
2 state road culverts would divert money from either salmon recovery programs or social programs to
3
the completely separate state transportation budget, or that correction of the worst state highway
4
culverts within twenty years, as requested by Plaintiffs, would deplete the nearly $6 billion biennial
5
transportation budget—a budget swollen by two enormous gas tax increases enacted while this
6

7 litigation was pending.

8 The Plaintiffs urge this Court to reject the State‘s ―just do nothing‖ approach in favor of the

9 injunction they propose which, while sufficiently robust to deal with the culvert problem is also
10 carefully tailored to minimize burden on the State. The injunction would require the State to
11
correct all its broken culverts eventually, to abide by a schedule for correction of the most important
12
barriers, and to follow the advice of its own experts on culvert design, maintenance, and
13
monitoring. The injunction would use the State‘s methods to identify barriers, and allow the State
14

15 to prioritize culvert corrections as it chooses within the limits of the schedule. The injunction

16 would set a performance standard—―pass all fish at all life stages‖—that is also derived from

17 current state law, and would establish the State‘s preferred, stream simulation culvert design as the
18
default wherever feasible. Because culverts wear out, and state law requires that the repaired or
19
replaced culvert be fish-passable, the cost of the injunction would be only the marginal cost of
20
providing fish passage sooner, using designs that the State itself prefers. That cost will be a
21
miniscule fraction of the State‘s road budgets.
22

23 By proposing this tailored injunction, Plaintiffs have met the State more than halfway. In

24 response, the State has refused to make any move to solve a problem that it created, and realized it
25
26

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1 had created, decades ago. The State‘s position is absolute: the Tribes may join other suitors at
2 state government‘s door, but ultimately the State alone should determine how and when culverts are
3
fixed, and therefore how many fish are available for treaty harvest. But the State‘s right to dictate
4
how many fish the Tribes may catch was relinquished more than 150 years ago in exchange for
5
millions of acres that are now Washington. That exchange is a part of federal law every bit as
6

7 sacrosanct as a statute in the United States Code or a decision rendered by the United States

8 Supreme Court. Too often the federal courts have had to remind the State of this bargain, and that

9 the bargain endures absent Congressional action to the contrary. Plaintiffs respectfully request that
10 the Court issue this reminder again, and enter the injunction they seek.
11
II. SUMMARY OF PLAINTIFFS’ PROPOSED REMEDY.
12
The relief Plaintiffs seek is detailed in the Proposed Injunction, filed with their Proposed
13
Findings of Fact and Conclusions of Law. Dkt. Nos.659. 659-2 and 660 (hereinafter Pltfs. Prop.
14
Finding # or Pltfs. Prop. Conclusion #). The main elements of that injunction are as follows:
15
Within six months of judgment the State shall prepare a list of all state culverts in the
16 Case Area that it has identified as barriers according to Washington Department of Fish and
Wildlife‘s (―WDFW‖) current barrier assessment standards;
17

18 All state culverts that are now barriers or become barriers in the future shall be made
passable to all species and life stages of salmon, at all flows where the fish would naturally
19 seek passage—a standard largely borrowed from state Forest Practices law;

20 The Washington State Department of Transportation (―WSDOT‖) barrier culverts that
have 200 meters or more of salmon habitat upstream shall be made fish passable within 20
21 years—with an exception detailed in the injunction that provides the State flexibility to
22 defer correction of more than two hundred of the approximately 800 WSDOT culverts in
this category;
23
WSDOT barrier culverts in the Case Area with fewer than 200 meters of upstream
24 salmon habitat shall be made fish-passable at the end of their useful lives, or sooner if
altered as part of a highway project, as is currently required by state fish passage law and
25
policy;
26

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1 WDFW, Washington Department of Natural Resources (―DNR‖), and Washington
State Parks and Recreation Commission (―State Parks‖) barrier culverts shall be made fish
2 passable by July 2016, the deadline under current state law and policy;
3
New stream crossings and structures built to correct existing barrier culverts will
4 utilize a bridge or the stream simulation design unless an emergency or extraordinary site
conditions make that not feasible, or another alternative will more effectively pass fish;
5
The State shall make ongoing efforts to identify its culverts that become barriers after
6 the compilation of the list, and make them fish-passable within a reasonable time;
7
The State shall monitor its implementation of the injunction and evaluate whether its
8 efforts to provide fish passage are effective, and take reasonable steps to maintain its
culverts to prevent fish barriers and protect fish habitat.
9
The facts and the law set forth below demonstrate that Plaintiffs have met their burden to
10

11 obtain an injunction, and that the injunction they propose is carefully tailored to remedy the harm at

12 hand with minimal intrusion on state authority.2
13 III. FACTS.
14
A. Salmon And Tribal Salmon Fisheries Are In Trouble.
15
Salmon populations and salmon harvest in western Washington have been diminishing
16
more or less consistently for decades – perhaps a century. Pretrial Order (Dkt. No. 19409/614),
17
Adm. Facts 2.4, 3.2. The decline was lamented by the Department of Fisheries in its 1949
18

19 pamphlet, ―The Salmon Crisis.‖ Ex. AT-011, The Salmon Crisis (Wash. Dep‘t of Fisheries, 1949)

20 (hereinafter The Salmon Crisis); described in an extensive Joint Statement Regarding the Biology,
21 Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and
22
Olympic Peninsular Drainage Areas of Western Washington, Ex. JX-2a, at 13-14, prepared by state
23

24
2
Plaintiffs also ask that the State‘s counterclaims regarding alleged tribal barrier culverts be dismissed on the
25 basis of the Tribes‘ sovereign immunity, which the Pretrial Order acknowledges is a bar to those counterclaims.
Pretrial Order, Claims and Defenses, ¶2. The State appears to seek dismissal without prejudice under LR 41(b), for
26 non-prosecution. See Washington‘s Proposed Findings of Fact and Conclusions of Law, Dkt. No. 19505/658,
Conclusion 40 (hereinafter State‘s Prop. Finding # or State‘s Prop. Conclusion #) . That would be inconsistent with the

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1 and federal biologists for the original trial in this case; and noted by the Supreme Court in
2 Washington v. Washington Commercial Passenger Fishing Vessel Ass‘n., 443 U.S. 658, 669 (1979)
3
(Fishing Vessel).3 Tribal harvest enjoyed a brief boom in the decade after that decision. Since
4
about 1985, however, tribal harvest of salmon in the case area has declined dramatically, from a
5
peak of 5.3 million fish harvested in 1985 to 1.5 million in 2007. Adm. Fact 2.7; Ex. JX-25,
6

7 Stipulation Re: Treaty and Non-Treaty Harvest Data (Sept. 24, 2009).

8 Many stocks of all species of salmon in the Puget Sound region have declined to such a

9 level that they are endangered, threatened, or of concern, and all salmon stocks in Puget Sound have
10 declined to much lower than historic levels. Rawson Testimony, 10/14/09, at 105:6-144; see also
11
Rawson Written Testimony, Ex. AT-007(B) (hereinafter Rawson Dec.), Table 1; Ex. W-085-D,
12
Endangered Species Act Section 7(a)(2) Consultation Biological Opinion and Magnuson-Stevens
13
Fishery Conservation and Management Act Essential Fish Habitat Consultation (NMFS, December
14

15 2008) (hereinafter 2008 BiOp) at 86-111.5 Tribal biological witness Mike McHenry confirmed that

16 Olympic peninsula stocks are also depressed. Testimony of Mike McHenry, 10/13/09 at 140:7-12.6

17 In a comprehensive assessment by the Tribes and WDFW in 1992, 149 of the 209 salmon stocks in
18
the case area were rated and 37% were determined to be either depressed or critical. Rawson Dec.,
19
Ex. AT-007-B at 2-3. Stocks of chinook, coho, and steelhead are more likely to be in poor
20

21 Pretrial Order‘s acknowledgment of the sovereign immunity defense and would, in effect, permit a voluntary dismissal
long after trial in a manner inconsistent with Fed. Rule. Civ. Pro. 41(c).
22 3
The contents of Ex. JX-2a were incorporated as findings of fact in United States v. Washington, 384 F.Supp.
312, 382-83 (W.D. Wash, 1974) (Final Decision I).
23 4
Mr. Rawson, B.S. Biology, M.S. Biomathematics, is Senior Management Biologist for the Tulalip Tribes,
and has nearly thirty-five years experience in salmon biology and harvest management. Resume of Kit Rawson, Ex.
24 AT-007-1.
5
Salmon of the same species, originating in the same area and returning to spawn at the same time of year, are
25 referred to as a ―stock.‖ Adm. Fact 2.13.
6
Mr. McHenry, B.S. Fisheries, M.S. Wildlife Science, is Fisheries Habitat Program Manager for the Lower
26 Elwha Klallam Tribe. He has over twenty years experience in fisheries habitat and habitat restoration. McHenry
Resume, Ex. AT-004-1.

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1 condition (55% of Chinook stocks, 46% of coho stocks, and 48% of steelhead stocks). Rawson
2 Dec., Ex. AT-007-B at 1-4. These are the species with the longest freshwater juvenile phases. Ex.
3
JX-2a; AT-114, Summary: Statewide Strategy to Recover Salmon, Extinction is Not an Option
4
(Governor‘s Salmon Recovery Office, Sept. 1999) (hereinafter Extinction is Not an Option –
5
Summary), at II.10 (―Anadromous species that rear in freshwater for extended periods (up to a
6

7 year), including spring/summer chinook, coho, sockeye, sea-run cutthroat and steelhead … are

8 generally extinct, endangered, or threatened over a greater percentage of their historic ranges than

9 species with abbreviated freshwater residence….‖). If this inventory were repeated today, the
10 statistics would likely indicate an even more degraded resource. See Rawson Dec., Ex. AT-007-B
11
at 4.
12
As a result of decreased abundance, the Tribes have been forced to greatly curtail the areas
13
they fish, the gear they use, and the times during which they permit fishing. Testimony of Mike
14

15 McHenry, 10/13/09 at 141:4-10; Testimony of Lorraine Loomis, 10/13/09 at 71:21-24 (where

16 production is low, Tribes will prohibit commercial fishing and allow only ceremonial fishing); id. at

17 81:10-83:2 (Tribes may close down a mixed stock fishery, close a particular area, or change gear to
18
avoid catching species listed as threatened or endangered under Endangered Species Act (ESA)).
19
Weakening of one stock due to habitat constriction may also limit the harvest of stronger stocks in
20
mixed stock fisheries. Adm. Fact 2.19. Reduced fishing opportunity has contributed to a decline in
21
the number of tribal members engaged in fishing. See, e.g., Loomis Testimony of 10/13/09, at
22

23 68:23-69:4 (stopped fishing salmon because not plentiful enough; if salmon were more plentiful,

24 she would fish for them); see also Rawson Dec., Ex. AT-007-B at 12-13, 20.
25 B. Habitat Is The Main Driver Of Fish Abundance.
26 Since Treaty time, human-caused factors including overharvest, poor hatchery practices,

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1 and hydropower development have reduced the abundance of salmon available for tribal harvest in
2 the case area. Adm. Fact 2.5. However, habitat degradation is the principal factor contributing to
3
decline of salmon, and thus of the tribal harvest, in the case area. Rawson Dec., Ex. AT-007-B at
4
10, 11; Roni Testimony, 10/26/09, at 153:19-24.7
5
Fresh water habitat is crucial to the salmon life cycle and the fish need the ability to move in
6

7 that habitat. Adults need unobstructed passage to spawning areas so that their limited energy

8 reserves are not depleted prior to spawning. Declaration of Lawrence J. Wasserman, Ex. AT-010,

9 at 4-5 (Wasserman Dec.). 8 Juveniles may utilize many types of freshwater habitat including
10 springs, ponds, marshes, and seasonal streams. Ex. AT-052, Fish Passage Program Progress
11
Performance Report for the Biennium 1991-1993 (DOF/WSDOT, Dec. 1992), at 3. Juveniles need
12
passage to the sea as smolts, and they need unobstructed movement in fresh water to find the right
13
depths and velocities of water to maximize food intake and minimize expenditure of energy.
14

15 Wasserman Dec., Ex. AT-010 at 4-5. Some species, especially chinook, coho, and steelhead,

16 remain in fresh water for extended periods as juveniles. Ex. AT-114, Extinction Is Not An Option --

17 Summary, II.10. Juveniles also need to find refuge from predators and from high velocity stream
18
flows, which may result in their being swept downstream and out to sea before they have ―smolted‖
19
and can tolerate salinity. Wasserman Dec., Ex. AT-010 at 7; Fox Written Testimony, Ex. AT-001
20
(hereinafter Fox Dec.) at 23-24.9 Juveniles often seek such refuge in tributary streams. Id.
21

22
7
Dr. Roni is a Research Scientist and Watershed Program Manager for the Northwest Fisheries Service
23 Center of the National Oceanic and Atmospheric Administration (NOAA) Fisheries. He has been a fisheries scientist
since 1990 and has written extensively on fish habitat restoration in the Northwest and elsewhere. Ex. USA-191, Roni
24 Curriculum vitae.
8
Mr. Wasserman, B.A. Biology, M.S., Fisheries, is the Environmental Policy manager for the Swinomish
25 Indian Tribal Community and has over twenty-five years experience in salmon habitat biology. Wasserman Dec., Ex.
AT-010, AT-010, ¶¶ 2-11.
9
26 Dr. Fox is a fisheries biologist with the Muckleshoot Tribe and also holds a Ph.D. in forest hydrology and
engineering.

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1 Although many factors affect salmon abundance and harvest opportunity from year to year,
2 such as cyclical changes in ocean conditions, the overall downward trend over decades can only be
3
attributed to loss of habitat quantity and quality. Rawson Dec., Ex. AT-007-B at 12. Sufficient
4
healthy habitat is therefore the key to increased production. Id.
5
The fact that habitat quality and availability is the principal factor contributing to the decline
6

7 of salmon in the case area is not news. In The Salmon Crisis, the Department of Fisheries noted

8 that ―[t]here is a close relationship between the amount of available spawning and feeding space

9 and the number of salmon that a stream can produce.‖ Ex. AT-011, The Salmon Crisis, at 6. This
10 document went on to note the dramatic harvest declines since 1910 and stated: ―This
11
phenomenal—and costly—decline can be attributed to two causes: blocking of the Fraser River
12
…below the main British Columbia spawning grounds, … and constriction of spawning and rearing
13
area in Washington streams….‖ Id. at 5. The Department of Fisheries further noted that
14

15 obstructions by hydroelectric dams and the ―myriad smaller obstructions such as … road culverts‖

16 had created ―an immense ‗lost frontier‘ which no longer produces salmon.‖ Id. at 6. State

17 publications have continued to admit the critical relationship between habitat and salmon
18
populations. See, e.g., Ex. AT-114, Extinction is Not an Option – Summary at IV.65, IV.69, V.87;
19
Ex. AT-156, Briefing Document: Fish Passage A Key to Fish Health (WDFW, 4/8/97) (hereinafter
20
Fish Passage Briefing Document), at 1; Ex. W-085-E, Excerpt from 2009 State of Salmon in
21
Watersheds: Salmon Recovery Act 10th Anniversary (Governor‘s Salmon Recovery Office, 2009),
22

23 at 33.

24 C. Barrier Culverts Cause Serious Harm To Fish Populations And Fish Habitat,
And Their Correction Is A High Priority Amongst Efforts To Recover
25 Washington’s Wild Salmon.
26 The salmon crisis identified by the State in 1949, and brought about in large part by fish

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1 passage barriers, has not abated. The State‘s own role in creating that crisis has become much
2 clearer, however, as a result of culvert inventories completed in the late 1990s.
3
1. There Are More Than 1,000 WSDOT Barrier Culverts In The Case
4 Area, With More Than Four Million Square Meters Of Salmon Habitat
Above Them.
5
WDFW began an inventory to identify fish passage barriers on WSDOT rights of way in the
6

7 early 1990s, Adm. Fact 6.8, and finally finished that inventory within the case area in 2007. Adm.

8 Fact 6.22; Ex. AT-071, WSDOT/WDFW Fish Passage Inventory Progress Performance Report

9 (June 2008), at 5. In 1998, DNR began identifying barrier culverts located on its forest lands, and
10 its formal inventory efforts were completed in December 2000. Adm. Facts 6.10, 6.17. Barriers on
11
lands owned or managed by WDFW, and some in State Parks, have been inventoried as well. Adm.
12
Facts, 6.9, 6.11. WDFW‘s data is maintained in the Fish Passage and Diversion Screening
13
Inventory database or ―FPDSI.‖ Adm. Fact 6.14. It is a live database which is periodically
14

15 updated, so inventory numbers relate to a specific time the database was consulted. Adm. Fact

16 6.15. DNR keeps a separate database for its culverts which, like the FPDSI, is adjusted over time to

17 reflect culverts removed or added to the inventory. Adm. Facts 6.14, 6.19, 6.20, 6.21.
18
As of March 2009, the FPSDI database showed 1,215 anadromous and resident salmonid
19
passage barrier culverts under WSDOT roads in the case area.10 Adm. Fact 6.16. State Parks has
20
yet to complete its inventory , but the WDFW database already has 89 fish passage barrier culverts
21
on Park lands within the case area. Adm. Facts 6.11, 6.12, 6.23; Barber Testimony, 10/19/2009, at
22

23 159:5-6 (State Parks has yet to complete its inventory ). As of July 2009, WDFW had identified 71

24 fish passage barrier culverts under roads on its lands in the Case Area. Adm. Fact 6.24. As of April
25 2009, the DNR culvert database showed 455 remaining culverts that are barriers to either resident
26

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1 or anadromous fish under roads it manages within the case area, and of these, 228 are barriers to
2 anadromous fish.11 Adm. Fact 6.21. Together, these four agencies have over 1800 barriers in the
3
Case Area. Plaintiffs‘ cartographer, Tyson Waldo, presented at trial maps derived from the State‘s
4
databases which display the ubiquity of these barriers throughout the case area.12 Waldo Written
5
Direct Testimony, Ex. AT-008(B) (hereinafter Waldo Dec.), Exs. AT-008-4, AT-008-6.
6

7 WDFW has been assessing the extent and condition of habitat above and below WSDOT

8 barriers to help prioritize corrections. WDFW expects to complete these habitat assessments in

9 2013. Adm. Facts 7.13, 7.14. The extent of habitat blocked gives some sense of the enormity of
10 the harm caused by these barriers. Of the 1,215 WSDOT barriers, 807 have more than 200 meters
11
of blocked anadromous salmonid habitat upstream, a length of habitat that WDFW treats as a
12
―significant reach.‖ Adm. Facts 6.16, 8.8.13 State fish passage scientists have estimated that there
13
are more than 1,000 miles and nearly 4.8 million meters of habitat above known WSDOT barriers.
14

15 Ex. AT-323, Spreadsheet, WSDOT CA Barriers Habitat 3-11-09 OHW update.xls, ‗Anadromous All

16 PI‘ worksheet at 13.14 The amount of habitat blocked by individual culverts varies widely. State

17 witness Brian Benson prepared Ex. AT-323, Benson Testimony, 10/23/09, at 132:13-137:1. That
18
exhibit identifies for each WSDOT culvert the amount of stream length (lineal gain) as well as the
19
amount of spawning and rearing habitat to be gained upon the repair of the culvert; it also provides
20

21
10
Resident salmonids include trout and kokanee (non-anadromous sockeye).
22 11
Unlike WFDW, DNR‘s database does not classify barrier culverts based on the amount of habitat.
12
The maps are derived from the state databases. Declaration of Tyson Waldo, AT-008(B); AT-008-4, AT-
23 008-6. Mr. Waldo also prepared other maps that display case area geography including Indian reservations, Ex. AT-
008-7; State lands and highways, AT-008-5; and the boundaries of the Water Resource Inventory Areas (WRIAs)
24 discussed in many exhibits, AT-008-10.
13
The evidence shows that 279 WSDOT culverts in the Case Area block fewer than 200 meters of habitat,
25 but the number of these that block only resident fish, not anadromous ones, is not reflected in the record. Barber Dec.,
Ex. W-088, at 4:21-26.
14
26 Tribal witness Tyson Waldo prepared a similar analysis based on a smaller state data set from 2008, and
concluded that there are more than 700 miles of salmon habitat upstream of those sites, and over 3.7 million square

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1 cumulative amounts. After reviewing Ex. AT-323, Mr. Benson testified that WSDOT would need
2 to correct approximately 577 of 807 culverts blocking more than 200 meters of habitat in order to
3
remove state barriers to 90% of the habitat blocked by WSDOT culverts. Benson Testimony,
4
10/23/09 at 138:5 – 139:13.
5
Since 1991, WSDOT reports that it has corrected 176 culverts statewide that now meet
6

7 WDFW fish passage standards. Ex. AT-072, WSDOT Fish Passage Inventory Progress

8 Performance Report (July 2009) (hereinafter 2009 WSDOT/WDFW Fish Passage Progress Report),

9 at 4-5, fn 2 (225 corrections, but 49 require additional work); see also Ex. AT-302. DNR has
10 removed 834 barrier culverts in the Case Area from its inventory since 2001, but about half of these
11
culverts were removed by reclassifying streams as non-fish-bearing, or closing or permanently
12
decommissioning roads. Nagygyor Written Testimony, Ex. W-094 (herein after Nagygyor Dec.), at
13
17:2-16 and 18 (DNR‘s Barrier Accounting Table); Nagygyor Testimony, 10/20/2009, at 37: 6-23;
14

15 40:10 – 41:4; Ex. W-094-C, DNR‘s Barriers Removed from List in 2008 by Activity; Ex. AT-130,

16 Barrier Removal Implementation Plan (DNR, June 2007) at R0009532; Ex. AT-147, Letter from

17 Alex Nagygyor to Hurst, Wolfer re: State of Fish Barrier Culvert Address (DNR, 2/23/05) at 1, 4.
18
2. State Barrier Culverts Reduce Salmon Production By Preventing Or
19 Delaying Adult And Juvenile Access To Habitat And By Reducing The
Quality Of Accessible Habitat.
20
The mechanisms by which these hundreds of state barrier culverts contribute to salmon
21
decline, and by which they damage the habitat around them, are well-known. They are summarized
22

23 in several exhibits prepared by government agency scientists and relied upon by all parties at trial,

24 including WDFW‘s manual, Ex. W-089-B Design of Road Culverts for Fish Passage (WDFW
25
26 meters of rearing habitat above the 458 sites for which that data was available. Waldo Dec., Ex. AT-008-B, at 16, ¶
37.4.

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1 2003)(WDFW Design Manual); Ex. AT-120, Design For Fish Passage at Roadway-Stream
2 Crossings: Synthesis Report, (USDOT/Fed. Hwy. Admin. 2007) (hereinafter FWHA Synthesis
3
Report); Exs. USA-198 and W-089-D, Anadromous Salmonid Passage Facility Design (Nat‘l
4
Marine Fisheries Service, NW Region, Portland, OR, 2008) (hereinafter 2008 NMFS Fish Passage
5
Design). The effects of culvert design on fish passage and habitat were also the subject of extensive
6

7 Testimony by the Tribes‘ witness Dr. Martin Fox. See generally Fox Dec., Ex. AT-001; see also

8 Barnard Written Testimony, Ex. W-089 (hereinafter Barnard Dec.), at 7:13-8:11, 12:8-12.

9 As described in the WDFW Design Manual and the NMFS and FHWA design reports,
10 culverts may be complete barriers – blocking all fish at all times – or they may be partial barriers –
11
blocking some fish, or some of the time. Ex. W-089-B, WDFW Design Manual, at 10-13. Because
12
the hydraulic factors that affect fish passage vary with stream flow, culverts may be barriers at some
13
flows and not others. Fox Dec., Ex. AT-001 at 8-12. Even partial barriers can significantly harm
14

15 salmon. They may delay fish movement or demand additional energy for fish to pass. Ex.W-089-

16 B, WDFW Design Manual, at 13; see also Ex. AT-183, Salmon 2000 Technical Report (Dep‘t of

17 Fisheries, May 1992) at 00009739. ―[D]elay in their migratory timing can be as catastrophic as a
18
total block.‖ Ex. JX 2a, Joint Biological Statement at 18; see also Ex. AT-120, FWHA Synthesis
19
Report, at 3-2 to 3-9, 4-13, 5-3 to 5-4.
20
Poorly designed or built culverts not only block fish passage directly; they also affect stream
21
or ―fluvial‖ processes in ways that lower the quality and production potential of salmon habitat.
22

23 Fox Dec., Ex. AT-001 at 2, 7; Ex. W-089-B, WDFW Design Manual at 7, 11; see also Adm. Fact

24 1.4 (―Transport and storage of wood, large woody debris, and sediment in fish bearing streams are
25 important components of healthy productive salmon habitat.‖) By impeding the downstream
26
movement of sediment, wood, and vegetative debris, culverts can harm habitat both upstream and

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1 downstream. Wasserman Dec., Ex. AT-010 at 14 (―[W]ithout adequate instream structures or water
2 depths, juvenile salmon are at greater risk of predation from both avian and piscatorial predators. . .
3
.Much of the wood found in the stream is the result of its floating downstream from upstream
4
locations during high flow events. Unimpeded movement of wood is critically important to insure
5
adequate, well-distributed wood supplies.‖) id. at 18-22; Declaration of Mike McHenry, Ex. AT-
6

7 004 at 4-5 (McHenry Dec.) (explaining that improperly sized culvert failed to transport sediment,

8 creating stranding pools and killing salmon); Fox Testimony, 10/14/09, at 58:9-59:19.

9 Plaintiffs presented volumes of evidence demonstrating that the more than 1,000 state
10 barrier culverts in the case area block over four million square meters and over 1000 miles of
11
salmon habitat, thereby substantially reducing salmon production by adversely impacting juvenile
12
and adult access to spawning and rearing habitat and the quality of accessible habitat. See Parts
13
III.C.1 and III.C.2, supra. The overwhelming weight of evidence therefore supports the Court‘s
14

15 conclusion on summary judgment, that it is ―inescapable that if culverts block fish passage so that

16 they cannot swim upstream to spawn, or downstream to reach the ocean, those blocked culverts are

17 responsible for some portion of the diminishment [of fish runs].‖ Amended Order on Cross-
18
Motions for Summary Judgment (Dkt. No. 18879/392), at 5.
19
D. Correcting Culverts Is Recognized As An Effective Way To Restore Salmon
20 And Treaty Fisheries.

21 1. Plaintiffs’ Witnesses Confirmed The Benefits To Salmon Of Barrier
Culvert Repair.
22

23 Larry Wasserman testified that culvert correction is an especially effective tool in salmon

24 recovery. The effects are ―immediate, as compared to other types of restoration efforts that might

25 take years to have an effect, such as riparian planting.‖ Wasserman Dec., Ex. AT-010 at 29. There
26 is a high level of confidence in design of repairs. Id. Monitoring for effectiveness of culvert repair

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1 is much easier than for many other habitat restoration efforts. Id. Installation of a culvert generally
2 requires few changes in surrounding land uses, so impacts to private landowners are minimal. Id;
3
see also Wasserman Testimony, 10/13/09, at 123:11-13, 125:9-14, 125:17 – 126:13, 126:22-25).
4
Mike McHenry testified about the benefits of culvert corrections based on his extensive,
5
hands-on experience in salmon habitat restoration. See generally, McHenry Dec., Ex. AT-004 As
6

7 Mr. McHenry notes, his work and the scientific literature on watershed restoration emphasize the

8 importance of a hierarchical process that would ―protect areas of high quality and functional

9 habitat; reconnect isolated habitat areas isolated by human caused barriers; restore hydrologic,
10 geologic, and riparian processes; conduct in stream habitat enhancement; conduct meaningful
11
watershed scale monitoring.‖ Id. at 7-8. Thus, the correction of human caused barriers is generally
12
recognized as the highest priority for restoring habitat used by Pacific salmon, following the
13
protection of existing functional habitats. Id. at 1. Correction of barriers often results in a rapid
14

15 response by colonizing salmon and has been shown to quickly result in increases in juvenile and

16 adult salmon. Id.

17 Dr. Philip Roni testified similarly concerning studies showing that after barrier correction
18
fish colonize new habitat (i.e., areas opened up) very quickly (within a week) in contrast to other
19
habitat improvement techniques. Roni Testimony, 10/26/09, at 158:7– 159:8. Additionally, those
20
other techniques might only last a few decades before they have to be repeated. Id. at 158:7-13.
21
2. The State Acknowledges That Barrier Repairs Are Very Cost-effective
22
And Essential To Salmon Recovery.
23
Myriad state documents tout the cost-effective nature of barrier correction. See Ex. AT-053,
24
Fish Passage Program Progress Performance Report for the Biennium 1993-1995
25
(WDFW/WSDOT), at 1 (―Correction of human-made barriers to fish migration is one of the most
26

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1 cost effective habitat restoration strategies available.‖); see also Ex. AT-094, 1997 Salmonid
2 Screening, Habitat Enhancement and Restoration Division (SSHEAR) Annual Report (WDFW)
3
(hereinafter 1997 SSHEAR Annual Report), at 1 (―Correction of human-made fish passage barriers
4
such as impassable culverts . . . is one of the most cost effective methods of salmonid enhancement
5
and restoration.‖); Ex. AT-159, Washington Transportation Plan 2007-2026(WSDOT, 11/14/06) at
6

7 44 (same conclusion); Ex. AT-178, Fish Passage Grant Proposal (WSDOT and WDFW made to

8 Federal Hwy. Administration (date unknown)) at 2 (same); Ex. AT-180, Governor‘s Fiscal Year

9 1999 Transportation Plan at 2 (same).
10 WDFW has referred to barrier culvert correction as a ―critical component in the effort to
11
restore wild salmon…,‖ whose benefits greatly exceed the costs. AT-054, Fish Passage Program
12
Department of Transportation Inventory Final Report (WSDOT/WDFW, 1997) at 2; see also Ex.
13
AT- 073, Second Substitute Senate Bill 5886, Fish Passage Task Force Report to the Legislature
14

15 (WDFW/WSDOT 1997) at 12 (barrier correction ―is a very cost effective means for habitat

16 restoration‖) The State has reported that it ―has been estimated that every dollar spent on fish

17 passage work will return a minimum of four dollars in fish benefits, even when not considering
18
non-consumptive values.‖ Ex. AT-156, Fish Passage Briefing Document, at 3-4.
19
E. Elements Of An Adequate Barrier Culvert Correction Program Are Known,
20 But The State’s Programs Fall Short.

21 The State organized a program for fixing its broken culverts in 1991, when WDFW and
22 WSDOT entered into an agreement for the assessment and correction of state highway barriers. Ex.
23
W-093-D, 1990 WSDOT/WDFW MOU Concerning Compliance With The Hydraulic Code
24
(08/29/1990). See also, AT-072, WDFW/WSDOT Fish Passage Inventory Progress Performance
25
Report, (July 2009), at 4. In subsequent years, the State developed correction programs for
26

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1 WDFW‘s own broken culverts, and for those of the Washington Department of Natural
2 Resources.15 An examination of the State‘s programs, however, shows that they lack elements
3
recognized as essential by state, tribal, and federal fish passage experts.
4
1. Summary Of The State’s Existing Barrier Correction Programs.
5
The barrier correction programs at each state agency are organized differently. WSDOT
6
contracts with WDFW for barrier and habitat assessment, prioritization and preliminary design. Ex.
7

8 W-088-H, Fish Passage Barrier Agreement (June 12, 2009) . WSDOT‘s barrier culverts are

9 largely remediated through two different funding structures: (1) as part of a capital construction

10 project when the barriers fall within the boundaries of a highway construction project, in which case
11
the funding comes from the capital part of the Transportation budget; and (2) as part of a dedicated
12
corrections program with funding from the WSDOT I-4 (aka, Environmental Retrofit) budget.
13
Adm. Fact 8.9. As a result of an interagency agreement, WDFW and WSDOT have agreed that
14
WSDOT need only correct during a highway project those fish passage barriers located at a site
15

16 where WSDOT must work in the stream and thus obtain a Hydraulic Project Approval (HPA).

17 Adm. Fact 8.10.
18 As a result of changes to the State‘s Forest Practices Act, DNR is required to correct its
19
barrier culverts by the year 2016. Ex. AT-063, Fish Passage Barrier Inventory and Assessment
20
Project Report (DNR, Apr. 26, 2001), at R0004141. DNR principally remediates its barrier
21
culverts either by requiring timber purchasers to correct culverts as part of a timber sale contract or
22

23 by assessing fees on timber sales that are credited to the Access Road Revolving Fund (ARRF

24 Fund). Adm. Fact 8.13. That fund is a non-appropriated account managed by the DNR to maintain,

25
15
26 There is no evidence that the State Parks and Recreation Commission has or ever had anything that could be
called a correction ―program.‖

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1 repair, and reconstruct access roads, or public roads used to provide access to public lands. RCW
2 79.38.050.
3
WDFW does its own inventory and design and its corrections are funded in the State‘s
4
capital budget. Barber Dec., Ex. W-088 ¶¶ 22 and 23.
5
2. The State’s Inventory And Habitat Assessment Process Understates The
6 Scope Of The State Barrier Culvert Problem.
7
The first step in barrier correction is to locate culverts on salmon streams. The WDFW‘s
8
inventory process is widely used, including by the Tribes, but it is not perfect. As tribal biologist
9
Mike McHenry explained in his Testimony, an inventory can miss streams, and even old roads, in
10
dense brush and timber. McHenry Dec., Ex. AT-004 at 10. The locations of water suitable for
11

12 salmon may also be ill-defined, either because the water body‘s location is known but its suitability

13 for salmon is unclear, or because the inventory team relies on maps or ―stream layers‖ in
14 Geographic Information System, which may omit some water features. Id. Tribal biological
15
witness Karen Walter testified that WSDOT does not follow state regulations in assessing fish
16
presence, e.g., WAC 222-16-031(3), but instead limits its evaluation to pre-existing data and
17
occasionally its own limited habitat surveys. As a result, there are many streams that are incorrectly
18

19 assessed by WSDOT as non-fish-bearing. Walter Written Testimony, Ex. AT-009 (hereinafter

20 Walter Dec.), at 2-4.

21 Once a road-stream intersection with a culvert is located, the next step in the inventory
22 process is to determine whether the culvert is a barrier. That determination requires a definition of
23
what a barrier is, and it requires a methodology to determine whether the culvert meets that
24
definition. As Dr. Martin Fox testified, to avoid being fish passage barriers, culverts must
25
accommodate passage for the weakest species and life history stage. Fox Dec., Ex. AT-001 at 15.
26

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1 WDFW professes the same goal: ―It is the intent of the department to provide protection for [‗all
2 fish species . . . and all stages of development of those species‘] through the development of a
3
statewide system of consistent and predictable rules.‖ WAC 220-110-020(36); WAC 220-110-010.
4
Similarly, DNR has the passage of all species and life stages as the standard for fish passage under
5
its Forest Practice rules. WAC 222.24-010(2) (providing for fish passage at all ―life stages‖). See
6

7 also, Ex. AT-176, Family Forest Fish Passage Program Guidelines (WDFW et al., Dec. 2004), at 4

8 (―A fish passage barrier . . . impedes free passage of fish—any species, any life stage—to habitat

9 upstream or downstream.‖).
10 Despite the parties‘ shared goal of passing all species and life stages of fish, in practice the
11
State‘s barrier assessment methods are insufficient to reliably insure juvenile salmon passage. Fox
12
Dec., Ex. AT-001 at 26. WDFW has assessed WSDOT and State Parks culverts as well as its own
13
using criteria contained in the Fish Passage Barrier and Surface Water Diversion Screening
14

15 Assessment and Prioritization Manual (herein after WDFW Assessment Manual) (Ex. W-087-E). In

16 determining whether or not a culvert is a fish passage barrier, WDFW first evaluates the physical

17 characteristics of the culvert. This is known as a ―Level A‖ barrier assessment. Adm. Fact 7.2.
18
Sometimes physical characteristics alone are insufficient to assess barrier status and WDFW must
19
conduct a ―Level B‖ analysis and an hydraulics analysis. Adm. Facts 7.3, 7.4. The State uses the
20
adult trout criteria from Table 1 of WAC 220-110-070(3) (Ex. W-089-F) when determining whether
21
or not a culvert is fish-passable in its Level B Assessment. See Ex. W-087-E, WDFW Assessment
22

23 Manual, at 18. The maximum permitted average velocity for trout is 4.0 feet per second. Table 1

24 of WAC 220-110-070(3) (Ex. W-089-F). As both Tribal (Dr. Fox) and WDFW (Mr. Barnard and
25 Dr. Sekulich) witnesses testified, this is too high to reliably pass juvenile salmon. Fox Dec., Ex.
26
AT-001 at 27-28; Sekulich Testimony, 10/15/2009, at 125:1-3 (admitting that six-inch trout

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1 standard is too liberal in that it will not pass all juveniles). Dr. Fox recommends a maximum
2 average velocity of 1 foot per second to ensure juvenile passage or 2 feet per second if there is
3
sufficient roughness in the bed of the culvert to create an adequate and consistent boundary layer of
4
slower velocity in which a juvenile can travel. Fox Dec., Ex. AT-001 at 27-28. Mr. Barber
5
acknowledged that despite the understanding that 4.0 feet per second velocity will not reliably pass
6

7 juveniles, the 2009 update to the WDFW Assessment Manual did not consider juvenile salmonid

8 passage and thus would need to be modified to allow for their passage in the future. Barber

9 Testimony, 10/19/2009, at 156:10-20. And Mr. Barnard admitted that the adult trout standard was
10 not adequate since it only addresses adult fish and not juveniles. Barnard Testimony, 10/20/2009,
11
at 82:1-7.
12
3. Designs That Best Pass Fish And Protect Their Habitat Are Known, But
13 Inconsistently Applied By The State.
14 Once a barrier is identified a design for a correction must be chosen. To pass salmon and
15
protect salmon habitat, stream crossing design must insure that water passes without damaging the
16
road, and must minimize interference with fluvial processes such as wood and sediment transport
17
that shape both habitat and passability. A variety of design solutions have been developed that
18

19 address these objectives to varying degrees. The current science is reflected in the WDFW Design

20 Manual, Ex. W-089-B, a document intended to guide construction by all culvert owners in the

21 State, not only state agencies. Other major summaries of design science are the FWHA Synthesis
22 Report (Ex. AT-120 (in full)), Ex. W-089-E (excerpts), and the 2008 NMFS Anadromous Salmonid
23
Passage Facility Design (Exs. USA-198, W-089-D).
24
a) There Is A Hierarchy Of Design Options From Avoidance Of A
25 Crossing, To Using Bridges, To Use Of Culverts.
26 The current science establishes a hierarchy of stream crossing design options and, within

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1 those, a hierarchy of culvert design options. See Pltfs. Prop. Finding #10.1 (Dkt. No. 659). Most
2 preferred is to locate or relocate the road so that no crossing is needed. Ex. W-089-B, WDFW
3
Design Manual, at 7 (―Access solutions that do not require water crossings are preferred.‖); id. 9
4
(―Because the impact to stream habitat can be significant, the best option for roadway design is to
5
avoid or minimize the number of steam crossings needed.‖). The next preference is to use a bridge.
6

7 The lowest preference is to use a culvert. See, e.g., WAC 220-110-070 (―In fish bearing waters,

8 bridges are preferred as water crossing structures by the department in order to ensure free and

9 unimpeded fish passage for adult and juvenile fishes and preserve spawning and rearing habitat. . . .
10 Other structures which may be approved, in descending order of preference, include: Temporary
11
culverts, bottomless arch culverts, arch culverts, and round culverts.‖); Ex. AT-120, FHWA
12
Synthesis Report, at 6-10, 6-15 (―Aside from road removal or relocation, bridges provide optimum
13
biological, geomorphic, and hydraulic connectivity‖); Ex. USA-198, 2008 NMFS Anadromous
14

15 Salmonid Passage Facility Design, at 68 (―The following alternatives and structure types are listed

16 in general order of NMFS‘ preference: Road abandonment and reclamation or road alignment to

17 avoid crossing the stream. Bridge or stream simulation spanning the stream flood plain. . . .
18
Embedded pipe culvert. . . .‖). See also Adm. Fact 5.1.16
19
b) Where A Stream Crossing Cannot Be Avoided, Bridges And
20 Stream Simulation Culverts Are Generally The Best Of Several
Design Options In Providing For Fish Passage And Fluvial
21 Processes.
22 Where a culvert is used, the WDFW Design Manual summarizes three culvert design
23
options: stream simulation, hydraulic design, and no-slope. Ex. W-089-B, WDFW Design Manual,
24
Chapters 4-6, at 17-39. The WDFW Design Manual describes the design option known as ―stream
25
26 16
As discussed below, the passage solutions used by the State in the past include a prevalence of culverts,

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1 simulation.‖ Other entities, including the U.S. Forest Service, have developed and use similar
2 ―stream simulation‖ culvert design methodologies. See Ex. AT-119, Stream Simulation: An
3
Ecological Approach to Providing Passage for Aquatic Organisms at Road-Stream Crossings,
4
(May 2008). A number of permutations on stream simulation are described in the FHWA Synthesis
5
Report. Ex. AT-120, FHWA Synthesis Report, at sections 7.1, 7.2. Stream simulation is useful only
6

7 for new structures, not retrofits. Ex. W-089-B, WDFW Design Manual, at 29.

8 Stream simulation stands in contrast to hydraulic design, which addresses only water

9 conditions. Stream simulation culverts are designed to create or maintain natural stream processes
10 within the culvert, i.e., simulate stream conditions. Adm. Facts 5.4. These processes include
11
movement of water, sediment, and wood, and the horizontal and vertical movement of the channel
12
in response to deposition and erosion of sediment. See Ex. W-089-B, WDFW Design Manual, at
13
29. By allowing natural sediment and wood transport in and through the culvert, habitat can be
14

15 created within the culvert itself, and there will be less effect on habitat upstream and downstream.

16 Id.

17 To accomplish its objective, all stream simulation designs dictate that a culvert should be
18
wider than the bank-full width of the stream. Adm. Facts 5.4. Different government agencies
19
calculate the width of the buffer differently but the required culvert size is not significantly
20
different. Id. The WDFW stream simulation design expresses the requisite width in the formula
21
[(1.2 X Bank Full Width) + 2 feet]. Ex. W-089-B, WDFW Design Manual, at 31.
22

23 Stream simulation‘s emphasis on stream processes is consistent with current science

24 regarding salmon and salmon habitat restoration generally. Salmon habitat results from natural
25 processes in the places salmon live. Id. at 5. Restoring those processes insures creation and
26
which is not consistent with this hierarchy.
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1 maintenance of habitat. The WDFW, NMFS, and USFS all currently recommend use of the stream
2 simulation method. Adm. Fact 5.6.17 The parties agree that the WDFW stream simulation option,
3
as well as the stream simulation option of the United States Forest Service,18 represent the best
4
science currently available for designing culverts that provide fish passage and allow fluvial
5
processes. Adm. Fact 5.7.
6

7 c) Hydraulic Designs Used By The State Fail To Provide Adequate
Passage For Juveniles Or To Maintain Habitat-Forming
8 Processes And Are Prone To Failure When Used To Retrofit
Culverts With Fishways.
9
As explained in the WDFW Design Manual, the FHWA Synthesis Report, and the 2008
10
NMFS Anadromous Salmonid Passage Facility Design, hydraulic design involves manipulation of
11

12 the culvert‘s physical parameters to achieve predetermined water characteristics, such as maximum

13 velocity, minimum depth, and maximum vertical drop. See, e.g., Ex. W-089-B, WDFW Design
14 Manual, at 19. In Washington, the velocity, drop, and depth standards for a hydraulic design are
15
based on what species and age class are intended to pass, and standards for different species and
16
ages are specified in WDFW regulations. WAC 220-110-070.19 The hydraulic design requires
17
detailed engineering calculations. Ex. W-089-B, WDFW Design Manual, at 19. It may be used for
18

19 new structures or to retrofit existing culverts to improve passage. Id. Examples of retrofits include

20 log or rock weirs downstream, which can create a stair step of pools and smaller jumps into a

21
17
Despite the recommendation of the WDFW Design Manual, the stream simulation design option is not
22 mentioned in – and so, of course, not required by – the WDFW fish passage regulations.
18
Robert Barnard praised the USFS‘ Stream Simulation: An Ecological Approach to Providing Passage for
23 Aquatic Organisms at Road-Stream Crossings (May 2008) (Ex. AT-119) as ―an absolutely stunning guidance manual
on stream simulation." Barnard Testimony, 10/20/2009 at 122:20-22.
19
24 These regulations govern the issuance of Hydraulic Project Approvals (HPAs) for culverts on fish-bearing
streams. An HPA is required for any in-water work on fish bearing waters in the State; the sole purpose of the HPA
25 requirement is to provide protection for fish life. WAC 220-110-010 (―It is the intent of the department to provide
protection for all fish life through the development of a statewide system of consistent and predictable rules [i.e. the
26 Hydraulic Code]‖); WAC 220-110-030(15) (―Protection of fish life shall be the only grounds upon which the
department may deny or condition an HPA.‖).

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1 culvert. Id. at 53. A culvert can also be retrofitted with a fish ladder, commonly build of concrete
2 and consisting of a series of pools and jumps or chutes. Fox Dec., Ex. AT-001 at 45-46. Another
3
common hydraulic retrofit is to place baffles – vertical plates of metal or plastic – inside the culvert
4
to slow the water. Id.20
5
The hydraulic design, and especially hydraulic retrofits, have significant drawbacks for
6

7 salmon. As the WDFW Design Manual candidly admits, and Dr. Fox testified, hydraulic design

8 generally results in smaller culverts and thus more constricted streams and increased risk to fish.

9 Ex. W-089-B, WDFW Design Manual, at 11; Fox Dec., Ex. AT-001 at 3, 27-28, 31. Moreover, the
10 design is only as good as the standards for passing the target species and age. Fox Dec., Ex. AT-
11
001 at 27-28. As noted above, supra, p.24, WDFW regulations have no standard specific to
12
juvenile salmon, even though some species rear in streams for extended periods. Wasserman Dec.,
13
Ex. AT-010 at 7-9. Consequently, in designing fish passage, WDFW uses the hydraulic criteria for
14

15 adult trout as a surrogate for juvenile passage, just as it does in barrier assessment. The adult trout

16 standard is an inadequate surrogate. See supra, pages 24-25. As a consequence, hydraulic design

17 in accordance with the WAC cannot assure juvenile passage.
18
The evidence at trial highlighted an additional and serious drawback to hydraulic retrofits –
19
the need for frequent maintenance. See generally Pltfs. Prop. Finding #10.10 (Dkt. No. 659).
20
Baffles and fishways tend to trap debris. Fox Dec., Ex. AT-001 at 29, 45-46. They can fill with
21
sediment and wood debris that block fish movement. Ex. W-089-B, WDFW Design Manual, at 24;
22

23 Ex. AT-120, FHWA Synthesis Report, at 6-15, § 6.3.4.5. Debris can alter hydraulic effects so the

24 structures are less efficient at reducing velocity. Ex. W-089-B, WDFW Design Manual, at 24.
25
20
26 WDFW treats all these types of retrofits as ―fishways.‖ A ―fishway‖ is any structure intended to facilitate
the passage of fish over or through a barrier. Ex. W-087-E, WDFW Assessment Manual, at 20; Ex. W-089-B, WDFW

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1 High flows can damage or break baffles and weirs. Documents prepared for a former WDFW
2 fishway inspection program show that a high percentage of fishways inspected during that program
3
were in need of maintenance. Ex. AT-094, 1997 SSHEAR Annual Report. The WDFW cautions
4
against use of the hydraulic method, and treats these retrofits as ―temporary‖ stopgaps until a more
5
suitable correction is done. Ex. W-089-B, WDFW Design Manual, at 19. Similarly, DNR states
6

7 that use of the hydraulic design option is ―not recommended for fish passage.‖ Ex. AT-212, Draft

8 Forest Roads Guide (DNR 2009), at 4-18.

9 d) The No-Slope Design Is Better Than The Hydraulic Design But
Still Fails To Adequately Account For Stream Processes Or
10 Juvenile Passage At High Flows.
11
The no-slope design option is the second culvert design option described in the WDFW
12
Design Manual. The no-slope design option requires that the culvert be set level in the stream, and
13
partly buried. Ex. W-089-B, WDFW Design Manual, at 17; WAC 220-110-070. The culvert must
14
be at least the width of the average channel bed width at the elevation the culvert meets the
15

16 streambed. Ex. W-089-B, WDFW Design Manual, at 17. The WDFW Design Manual explains that

17 the no-slope option is suitable in limited circumstances of small roads, crossing small streams that
18 have a gradient of less than 3%. Id. at 17. The National Marine Fisheries Service accepts the no-
19
slope design under the Endangered Species Act for use only in very small low-gradient streams.
20
Adm. Fact 5.13. WDFW intended the no-slope design to approximate the results of hydraulic
21
design but without the need for detailed and expensive engineering. Ex. W-089-B, WDFW Design
22

23 Manual, at 17. It was supposed to be a cheaper, easier alternative for small entities on driveways

24 and small roads. Id.; see also Barnard Testimony, 10/20/10, at 76:7-13. The design can only be

25 used for new installations or full replacement of an existing structure. Id. It cannot be used for
26
Design Manual, at 53; see also WAC 220-110-020 (37).
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