A water plant built for the city of Port Angeles by the National Park Service along the Elwha River is the subject of a lawsuit that contends the problems with the plant will lead to increased water costs and the removal of two upstream dams has impacted water quality. (Keith Thorpe/Peninsula Daily News)

A water plant built for the city of Port Angeles by the National Park Service along the Elwha River is the subject of a lawsuit that contends the problems with the plant will lead to increased water costs and the removal of two upstream dams has impacted water quality. (Keith Thorpe/Peninsula Daily News)

Port Angeles files federal lawsuit over Elwha water facilities

PORT ANGELES — The city of Port Angeles has filed a lawsuit against the federal government seeking damages and an injunction on the planned transfer of the Elwha water treatment facilities to the city.

Taking on the facilities in their current state would mean a tenfold increase in the city’s cost of providing industrial water and a potable water backup from $60,000 to an estimated $600,000, according to a lawsuit filed Friday in U.S. District Court in Tacoma.

“The city will be financially crippled if it has to assume ownership and operation of the water treatment facilities in their current condition,” the lawsuit reads.

“Those costs are more than 10 times what the city currently pays and would necessarily be passed onto the city’s citizens in the form of rate increases.”

The lawsuit against the U.S. Department of Interior and Interior Secretary Ryan Zinke was filed as backup to ongoing settlement talks to end a two-year impasse over facilities built for the removal of the Elwha and Glines Canyons dams.

City officials said dam removal — which was from 2011 to 2014 — has had an adverse effect on the quality and availability of water from the Elwha River.

The lawsuit alleges that the federal government failed to meet its obligations under the 1992 Elwha River Ecosystem and Fisheries Restoration Act to protect the city’s water right and water supply when the two dams on the river were removed — from 2011 to 2014 — and sediment was released from behind dams.

That has had an adverse effect on the quality and availability of water from the Elwha River, city officials said.

The City Council on July 17 authorized staff to file the lawsuit to meet Friday’s filing deadline.

Several council members and City Manager Dan McKeen have expressed optimism and hope that an amicable settlement would be reached before the case goes to trial.

On Tuesday, U.S. District Judge Benjamin Settle ordered the parties to hold a conference and submit a joint status report and discovery plan by Oct. 29.

If the case proceeds to a trial, it will be heard by U.S. District Judge David Christel in U.S. District Court Western District of Washington in Tacoma.

The lawsuit was filed by Grant Degginger of Lane Powell PC, a Seattle firm that the city hired in 2016 to help with the transfer of the Elwha water facilities.

It seeks an award of damages to be determined at trial, attorney’s fees and an injunction ordering Interior to maintain and operate the facilities until it meets the statutory guarantee of pre-dam-removal water quality and availability — and at no greater cost to the city.

The city was previously denied a request for $60 million in mitigation funding for taking ownership of the facilities.

The 21-page lawsuit lists six causes of action against the federal government: negligence, commissive waste, permissive waste, public nuisance, private nuisance and violations of the Elwha Act.

Port Angeles has a surface water right at the Elwha River that provides industrial water and a potable water backup. The city’s municipal water comes from the Ranney Well, a groundwater collector near the river.

During dam removal, heavy loads of sediment clogged the National Park Service-built surface water intake and damaged the pumping station.

“After the Elwha Dam was removed, twice as much sediment was released as anticipated,” the lawsuit said.

Prior to dam removal, the city had a simple gravity system that provided clean industrial water to the mill on Ediz Hook.

Changes to the river since dam removal also have caused the Ranney Well to become dry in low-flow conditions, the lawsuit said.

“The federal government negligently designed, constructed and maintained a series of water treatment facilities,” the lawsuit said.

“Now, the government has indicated that it will soon abandon those facilities to the city, despite the fact that the effects of dam removal are continuing to harm the city’s water right and operating those facilities will increase the city’s water costs more than tenfold.”

City officials sought $60 million in damages in an administrative claim filed in August 2016, saying they became aware of problems with the NPS infrastructure in December 2015.

In a February 2017 administrative determination, Interior’s regional Office of the Solicitor found “no credible evidence to establish any negligent or wrongful act or omission” on the part of the government that would qualify the city for compensation under the Federal Tort Claims Act, according to an attachment to the lawsuit.

In January, the Office of the Solicitor denied the city’s request for reconsideration, saying the city knew of problems at the Elwha water treatment facilities and potential problems at the Ranney Well no later than in February 2013.

The administrative claim was found to be “untimely” because it was not filed within two years, Office of the Solicitor attorney Stephanie Lynch wrote in the Jan. 29 denial.

The city had filed a Freedom of Information Act request to obtain documents related to dam removal that Interior would not willingly provide, according to the lawsuit.

“The city’s due diligence process found that the various treatment facilities are not working well, cost too much to operate and require millions of dollars of repairs,” the lawsuit said.

The lawsuit alleges that Interior “simply ignored the plain language of the Elwha Act and more than 20 years of internal government documents showing its understanding that the city is entitled to the same water quality and availability that existed before the dams were removed.”

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Reporter Rob Ollikainen can be reached at 360-452-2345, ext. 56450, or at rollikainen@peninsuladailynews.com.

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