OPINION-EDITORIAL: Plan to increase culvert funding is ‘legally dubious’

A month ago, the Joint State House/Senate Transportation Committee met in Olympia and heard an update on the governor’s plans to use a so-called “Section 601 letter” to rewrite our recently passed two-year transportation budget.

A Section 601 letter is a budget tool created under state law that’s a sort of distant cousin to a veto. Specifically, it allows the governor—working with the Washington State Department of Transportation (WSDOT)—to move money between budgeted transportation projects. The intent is to give the executive branch some flexibility in managing particular road projects that are delayed due to technical issues, weather or other practical reasons.

The “letter” part of the tool refers to written notice of the re-allocated money that the executive branch must send to the Legislature. Under our state constitution, the Legislature is responsible for writing budgets. The executive branch doesn’t have the power to change those budgets unilaterally.

Traditionally, Section 601 letters have been used to move relatively small amounts of money. But, this summer, the governor has stated he wants to move $175 million out of the Transportation Budget’s Connecting Washington account—our main state road- and bridge-maintenance fund. The governor’s staff has said the $175 million letter will be delivered to the Legislature in the next few weeks.

The governor’s plan is a major rewrite of the Legislature’s bipartisan 2019-2021 transportation budget. It’s more, in terms of both dollars and budget negotiation than the relevant Section 601 law intended.

This legally and constitutionally dubious move comes in response to a 2013 federal court injunction that asks the state to repair or replace certain culverts (those are the pipes that channel small streams and/or creeks under roads and/or trails) that block salmon and other fish from swimming up to spawning grounds in about a dozen western Washington counties. It asks the state to do this by 2030.

In broad policy terms, we should budget more money than we have for culvert replacement. But a Section 601 letter is not the proper way to do so.

This improper process is one more bad result of court-made public policy. The pattern has become familiar: A court tries to make policy by issuing an opinion, memo or other documents that ask the state—effectively, the state Legislature—to take a certain action. The Legislature asks the relevant state agency—usually part of the executive branch—to estimate the scope and costs of that action. The bureaucrats at the agency come up with Cost No. 1. While the Legislature is appropriating the necessary money, the bureaucrats come up with a higher estimated Cost No. 2. While the legislature considers that, the bureaucrats come up with an even-higher estimated Cost No. 3. And so on.

All along, the bureaucrats remind the Legislature in lecturing tones that a court has “ordered” this.

WSDOT initially estimated that the culvert replacement projects described by the 2013 federal court injunction would cost about $1.8 billion. Then, it raised the estimate to $3.2 billion. And, most recently, it’s raised the estimate to $3.8 billion—more than double the original number.

We’ve seen similar situations with K-12 school funding, housing for vagrant drug addicts, etc. This is not a process for making good, rational public policy.

It’s especially troubling when we’re talking about unblocking culverts in complex stream systems and watersheds that often contain interlocking tributaries, streams, and creeks. Blocked by culverts that belong to various groups—the federal government, the state, counties, cities, and private landowners. The relevant court injunction is written broadly and somewhat vaguely. It doesn’t offer clear metrics or definitions of success. As a result, state bureaucrats are hiding “Christmas list” projects behind judges’ robes. And the governor is flouting the constitutional separation of powers to fund those Christmas-list projects.

The Legislature needs to assert its co-equal standing with the judicial and executive branches of government in this matter. And others. The Legislature needs to reclaim its constitutional role as the state’s budget writer. And take the lead — not follow — in finding a good solution to the problem of failed culverts and blocked fish passage in Western Washington.

The first step in doing that is to oppose the $175 million heist of road- and bridge-maintenance funds described in the governor’s upcoming Section 601 letter. Our state roads and bridges need that money to stay in place for essential maintenance and the traveling public’s safety.

State Representative Jim Walsh, 19th Legislative District
428 John L. O'Brien Building | P.O. Box 40600 | Olympia, WA 98504-0600
(360) 786-7806 | Toll-free: (800) 562-6000