The owners of mid-Michigan dams that failed last month are blaming Michigan regulators for their failure to make repairs that could have prevented massive floods.
One day after Michigan sued dam owners Boyce Hydro Power LLC for “gross mismanagement” and “indifference to public safety,” the company responded with a court filing late Wednesday that argued the state is to blame for the May 19 flooding that prompted the evacuation of 11,000 residents of Midland, Gladwin and Saginaw counties.
The filing, which seeks to move the state’s suit and others to federal court, claimed Michigan regulators “aggravated, impeded, delayed and/or prevented” the company from completing federally “mandated auxiliary spillway construction and other dam safety repairs and measures at the Edenville Dam site solely to ensure dam and public safety solely to prevent the tragic failures of the 96-year-old dam.”
- Related: Midland failed dams, floods caused $200M in damages to 2,500 buildings
- Related: Two heirs bought Midland dams as a tax shelter. Tragedy followed.
- Related: Michigan regulators moved fast on dangerous dam. To protect mussels.
- Related: Michigan GOP calls for Nessel to step down from investigation into dam failure
Edenville Dam, before and after
These satellite photographs, taken in May 2019 and on May 21 of this year, show how widespread the damage was to the Edenville dam area.
The filing is the latest salvo in several years of lawsuits and regulatory feuds between the state, federal officials and Boyce over water levels at nearby Wixom Lake, the upkeep of the dams and freshwater mussels.
Attorney General Dana Nessel sued Boyce for several millions of dollars worth of damages on Tuesday, alleging that it ignored decades of warnings to increase capacity at the Edenville Dam that failed amid heavy rains, unleashing waters that also overcame the nearby Sanford Dam.
Boyce’s “mismanagement resulted in one of the worst flooding disasters in Michigan history,” Nessel’s suit reads.
Boyce owns both failed dams and two others nearby. In court papers Wednesday, the company alleged a different narrative, claiming that state officials were more concerned with “environmental and recreational issues related to the dam and nearby Wixom Lake” than safety.
Boyce claims state environmental and recreational regulators wrote “no fewer than 25 letter correspondences” to the Federal Energy Regulatory Commission between 2015 and 2018, the year the agency revoked Boyce’s license to generate power at the Edenville Dam.
Earlier court documents have indicated the dam generated $1 million per year in revenue for Boyce that could have funded repairs estimated at some $10 million.
Losing the license also meant the Edenville Dam “was unable to run flood waters through its decommissioned hydroelectric generating turbines, leaving only the dam’s six old Tainter gates to regulate and pass flood stage waters.”
In an email to Bridge, Boyce attorney Lawrence Kogan said state officials held up dam repair permits for three years and complained to FERC about “alleged but scientifically unsubstantiated” complaints about soil erosion, wetlands protection, floodplain issues and fishing.
“The Nessel narrative is an attempt to ‘spin’ the facts,” Kogan wrote to Bridge.
Nick Assendelft, a state environmental spokesperson, wrote in an email to Bridge that the state has “not had a chance to review” the filing but “our lawsuit speaks for itself.”
“For well over a decade [Boyce] violated federal dam safety laws and put profits ahead of safety — all while pocketing the money they earned through the use of the public’s waterways,” Nessel’s lawsuit alleged.
The suit details 20-plus years of demands from federal authorities that dam owners make repairs to help it sustain heavy waters and flooding.
They came May 19, less than a month after the state sued Boyce on claims it killed “thousands if not millions of freshwater mussels” by illegally lowering Wixom Lake.
The flood came when rains filled the lakes behind Boyce Hydro’s dams, punching a hole in the largest of them, Edenville. That sent water downstream, knocking out the Sanford Dam and causing some $200 million in damages to 2,500 buildings.
Gov. Gretchen Whitmer has sought a federal major disaster declaration that would increase and speed aid to the communities affected.
She has also ordered the state Department of Environment, Great Lakes and Energy to investigate, which many experts say is a conflict because the agency oversaw Edenville after Boyce lost its federal license.
On Tuesday, an association of nearby property owners that is seeking to buy the dams called for an independent investigation, saying Nessel and environmental regulators are “creating their own narrative on the blame for the Edenville Dam’s failure.”
The group claimed state regulators were “aware of the deficiencies associated with Edenville Dam” in September 2019, four months before they had previously acknowledged.
Michigan regulators had claimed they were waiting for a report on the dam's ability to meet state flooding capacity regulations, which are half as stringent as federal rules. The long-delayed report was originally due in March and posted online by the state on Thursday.
The consultant report, from Spicer Group Engineering in Saginaw, concluded the dam was "is in fair to poor condition" and "does not provide adequate capacity to pass the ½ Probable Maximum Flood (PMF) event sufficiently to meet [state] Dam Safety requirements."
Editor's note: This story was updated at 3:12 pm. Thursday to include the release of the consultant report.