FISH PASSAGE FACILITIES FOR HIGHWAY CULVERTS

FISH PASSAGE FACILITIES FOR HIGHWAY CULVERTS.

Highway culvert facilities maintained in such a manner as to constitute an obstruction to the passage of migratory fish are unlawful and under the provisions of section 47, chapter 112, Laws of 1949.  Counties and other governmental agencies are obligated to provide the same with fish passage facilities.

Notwithstanding the provisions contained in Amendment 18 of our State Constitution, gas tax funds may be used for this purpose.

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                                                                    July 19, 1950

The Honorable Alvin Anderson
Director of Fisheries
State of Washington
Smith Tower
Seattle, Washington                                                                                                    Cite as:  AGO 49-51 No. 304

Dear Mr. Anderson:

            In your recent letter you inquired as follows:

            "During the past several years the members of this department have encountered a serious problem in relation to highway culverts maintained in the streams of the state.  Some of these have been installed by the State Highway Department and many others by the various counties of the state.

            "In some of these culverts the bed of the stream has been allowed to erode and wash away from the discharge end of the culvert until in some instances the bed  [[Orig. Op. Page 2]] of the stream is several feet below the discharge end.  This difference of elevation in many cases makes an obstacle over which salmon ascending the stream to spawn are unable to pass.  Such stream obstacles cause a substantial fish loss since the spawning fish are unable to travel to the spawning grounds.

            "This department has endeavored to have those responsible for the installation and maintenance of these culverts correct the situation by installing adequate fish ways.  The State Highway Department has recognized this obligation in this matter and is making necessary corrections.  However, a number of the counties have expressed the opinion that they are not legally obligated to take any action and some have expressed the opinion that even in event there is a legal obligation on their part that the only funds they have available for such purposes would be gas tax funds which they do not believe can be spent for such a purpose.

            "Would you therefore render an opinion as to whether or not counties or other governmental agencies incur any legal obligation by the maintenance of such a stream obstruction as has been described in this letter.  In the event there is an obligation on the part of the county or other governmental agency, may gas tax money be used to discharge the obligation."

                                                                     ANALYSIS

            Section 47, chapter 112, Laws of 1949, is the section of our law which deals with the obligation of those maintaining obstructions in the streams of our state and it provides as follows:

            "Every dam or other obstruction across or in any stream shall be provided with a durable and efficient fishway, which shall be maintained in a practical and effective condition in such place, form and capacity  [[Orig. Op. Page 3]] as the Director may approve, for which plans and specifications shall be furnished by the Director upon application to him, and which shall be kept open, unobstructed and supplied with a sufficient quantity of water to freely admit the passage of fish through the same.  Every owner, manager, agent or person in charge of such dam or obstruction who shall fail to comply with the provisions of this section shall be guilty of a gross misdemeanor.

            "If any person or government agency shall fail to construct and maintain such fish ladder or fishway or to remove such dam or obstruction in a manner satisfactory to the Director, then within thirty (30) days after written notice thereof shall have been served upon the owner, his agent or the person in charge thereof, the Director may construct a suitable fish ladder or fishway, or remove such dam or obstruction, and the actual cost in case of construction of fishway thereof shall constitute a lien upon the dam and upon all the personal property of the person or government agency owning the same.  Notice of such lien shall be filed and recorded in the office of the County Auditor of the county in which such dam or obstruction is situated.  Such lien may be foreclosed in any action brought in the name of the state.

            "If any person or government agency shall fail to make any such fishway or remove such dam or obstruction in a manner satisfactory to the Director, then within thirty (30) days after written notice thereof shall have been served on the owner, his agent, or the person in charge, such dam or obstruction shall thereby become a public nuisance and the Director may take possession of same in his own name or in the name of the state and destroy same and no liability shall attach for such destruction."

             [[Orig. Op. Page 4]]

            You will note that the provisions of this law are specifically made applicable to governmental agencies and would therefore apply to county if the other facts involved make the statute applicable.

            It is of course necessary to determine whether or not culverts contained in the manner which you describe constitute a stream obstruction within the meaning of this statute.  We are of the opinion that they would inasmuch as such culverts are artificial structures placed in the bed of the streams, and, if they are operated and maintained in such a way as to change the bed of the stream to the extent that the culvert itself becomes an obstruction to the passage of migratory fish, we then believe the precise situation is created which the statute is intended to prevent or correct.  In other words it is our opinion that the provisions of this statute are intended to apply to any type of structure in a stream which by the nature of its original construction or by the nature of the changes which it causes in the bed of the stream constitutes an obstruction to the passage of migratory fish.  It is therefore our opinion that counties or other governmental agencies maintaining the culvert in such a manner as to constitute an obstruction to migratory fish are under a legal obligation to provide the same with fish ways according to plans and specifications furnished by the Director of Fisheries.

            The restriction on the use of gas tax money is found in Amendment 18 to our State Constitution, the same being Article II, section 40 which provides as follows:

            "All fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes, such highway purposes shall be construed to include the following:

            "(a) The necessary operating, engineering and legal expenses connected with the administration of public highways, county roads and city streets;

             [[Orig. Op. Page 5]]

            "(b) The construction, reconstruction, maintenance, repair, and betterment of public highways, county roads, bridges and city streets: including the cost and expense of (1) acquisition of rights-of-way, (2) installing, maintaining and operating traffic signs and signal lights, (3) policing by the State of public highways, (4) operation of movable span bridges, and (5) operation of ferries which are a part of any public highway, county road, or city street;

            "(c) The payment or refunding of any obligation of the State of Washington, or any political subdivision thereof, for which any of the revenues described in section 1 may have been legally pledged prior to the effective date of this act;

            "(d) Refunds authorized by law for taxes paid on motor vehicle fuels;

            "(e) The cost of collection of any revenues described in this section:

            "Provided, that this section shall not be construed to include revenue from general or special taxes or excises not levied primarily for highway purposes, or apply to vehicle operator's license fees or any excise tax imposed on motor vehicles or the use thereof in lieu of a property tax thereon, or fees for certificates of ownership of motor vehicles.

            "Approved November, 1944."

            It will be noted that the language of this constitutional amendment limits the use of the money to certain highway purposes.  Since the amendment has been adopted, it has not been construed by the courts in such a manner as to throw light on our present problem.  However, it would seem to us that the construction and maintenance of culverts under our state and country highways is certainly a highway purpose.  While we are aware that the  [[Orig. Op. Page 6]] installation of fish passage facilities at such culverts would neither increase nor diminish their utility for highway purposes, yet we also believe that such culverts must be constructed and maintained in accordance with our state laws including the provisions of our fishery code, and that money expended to make them conform would constitute an expenditure for a highway purpose.  In other words we are of the opinion that if the construction and maintenance of culverts is a highway purpose within the meaning of the amendment, any expenditure necessary to make them conform with our existing laws is likewise an expenditure for a highway purpose within the meaning of the amendment.

            We are therefore of the opinion that where a culvert constitutes an obstruction to the passage of migratory fish within the meaning of section 47, chapter 112, Laws of 1949 that gas tax funds may be used to provide fish protective facilities.

Very truly yours,

SMITH TROY
Attorney General

WILLIAM E. HICKS
Special AssistantAttorney General