Edenville Dam owner claims Michigan regulators to blame for flooding

The Edenville Dam, center, failed on May 19, with much of Wixom Lake flowing downstream as the embankment (left of dam) gave way. The lake is now a fast-flowing stream of the Tittabawasee River and thousands of property owners surrounding Wixom Lake now have acres of mud, not water, behind their homes.  (Bridge photo by Mike Wilkinson)

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.”

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.

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Comments

Don
Thu, 06/11/2020 - 8:35am

Well the republicans have been backing the dam owner for years and stopping the regulators from doing their jobs!!!

Mike
Sat, 06/13/2020 - 11:12pm

Got any documented proof or links for that allegation you are making? Lee Mueller has successfully extorted the Sanford Lake homeowners for years, forcing us to pay for repairs and upgrades to that dam.

middle of the mit
Sat, 06/13/2020 - 10:56pm

{{{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.”]]]

But in this article https://www.bridgemi.com/michigan-environment-watch/gov-gretchen-whitmer...

[[[The state hadn’t demanded structural changes to the Edenville Dam in the year and a half since it came under their purview, but it recently sued dam owners Boyce Hydro Power LLC over lowering lake levels and endangering a rare species of freshwater mussels. ]]]

And then this onehttps://www.bridgemi.com/michigan-environment-watch/michigan-should-have...

[[[[Michigan officials say their hands were tied because it would have taken clear evidence to compel the dam’s owners to make repairs or overcome a court’s ruling setting water levels at Wixom Lake.
“You have to prioritize public safety,” Baroud said. “You have to take action, not wait, or have conversations about it. Just take action.”

McDiarmid said the state couldn’t push for lowering lake levels because there was a Circuit Court-ordered water level set in May 2019 after years of fluctuating levels due to conflicts with Boyce. The order required the Edenville Dam to comply with FERC license requirements despite the recent revocation.

McDiarmid said the state couldn’t demand repairs or push for lowering lake levels without the final consultant’s report, which would have provided solid evidence to prove action was necessary. ]]]]

Then we get to this article https://www.bridgemi.com/michigan-environment-watch/two-heirs-bought-mid...

[[[Mueller’s attorney, Lawrence Kogan of New York, said his client wanted to make repairs but didn’t have the money. Mueller is devastated by the flood, Kogan said.]]]

Now since the owner was hitting the lake front property owners up for money and threatening to drain the lake if they didn't pay up, and then claimed poverty when the feds wanted him to make repairs or fixes, why should we believe him when he says the State stopped him from making repairs he says he was unable to afford? And where is the proof that the State stopped him from doing something he claims he can't afford? And why would the State stop him from improving his own dam when they say they didn't have authority to force him to make the repairs without the results from an inspection?

If your 5 year old told you a story like this......That is what we are dealing with.

It still doesn't negate the one thing that could've been done to mitigate this by the owner of the dam. What is that? He could have checked the weather and opened the floodgates a little to let out enough water to possibly mitigate the situation. And if the FLTF and the Lake front property owners had information that they are going to use against the State, we need to know why they petitioned to have the lake brought up from the 3 foot draw down to the full summer level.

Thank you Bridge and ALL of the reporters who make this a one stop media shop!

Sandra
Sun, 06/14/2020 - 9:17am

You’re absolutely right. We live below the Smallwood Dam and it’s always the same excuses. FERC won’t let Boyce let water out when heavy rain is coming because of the contract to keep the water levels at a certain point. And Boyce knew they didn’t make enough money to fix the dams. So the state and federal government never did a thing for nearly 20 years to get repairs done to keep people safe. All we ever heard was the safety of the fish and mussels. Never to keep the people safe. All 3 are to blame for the flooding of our houses and properties for many years. But our elected officials don’t want to hear from us despite our many letters, phone calls and complaints. We have never seen any action.

middle of the mit
Sun, 06/14/2020 - 7:47pm

Sandra,
I would like to see documentation stating that FERC wouldn't allow extra water to be drained in the case of a massive rainstorm. Because I don't buy that. I understand the court decision to keep the water levels at an agreed upon level, but I would think there would be some type of emergency provision for cases such as this.

What were the Feds and the State supposed to do? The only thing I can think of is to drain the lake. And if you think the lakefront owners wanted that, I have a bridge to sell you. The safety of the fish and the mussels was the States effort to keep the levels where the homeowners wanted them. Nothing else.

Do you know how I know this? Because I once said that I had never seen a lake dropped by 8 foot before, I was wrong. I have seen one lake and one reservoir drained until only the river ran. The State/County did that because they were checking and or replacing boards in the dams.

Why was the State/County willing to do this to their own dams and not this private dam? And again....I need someone to tell me how the State or Feds were going to make this owner fix his dams.

No one has come up with even an excuse yet. And to fair, one of the dams didn't fail, it was the retaining wall that failed.

But we just blame the Gubmint!

I really feel for you. I don't live below a dam, but if I was you, I would be gathering a coalition of your neighbors and those that live in the floodplain and start your own task force. That is apparently the only way your voice is going to be heard. Otherwise as individuals, your voice won't be heard and your rights will be overtaken by the lakefront homeowners who have more money and connections.

Everyone thinks the State is this Monolithic entity that is putting it's boot on everyone, yet the State couldn't put it's boot down and make a private dam owner bring his dam up to standard, heck, the Federal Government couldn't do it.

The lakefront owners are now saying they have evidence the State is at fault, yet they are the ones that petitioned the State and the County to raise the levels from the 3 foot draw down to the legal summer level. Is the State following court orders at fault? Or is the entity that wanted the levels raised who now say they have evidence that they knew the levels shouldn't be raised........but did it anyway?

It really is terrible that we are in this position, but I am not going to let the State take the brunt of the blame while everyone Shirks their personal private responsibility.