Michigan should have protected public from unsafe Edenville Dam, experts say

Michigan officials say their hands were tied regulating a dam that failed this month, leading to historic flooding in Midland. Dam experts disagree. (Bridge photo by Dale Young)

When the Edenville Dam failed this month, sending a torrent of water into Midland, Michigan officials were waiting for an overdue report to prove a dam deemed dangerous for decades didn’t meet state standards.

Michigan officials say they had no choice because they started at “ground zero” after inheriting oversight of the mid-Michigan dam in 2018, when federal officials revoked its license to generate power. 

Michigan has different regulations than the federal government, but safety experts who spoke to Bridge say the state should have moved faster to protect the public against a dam with a 25-year history of noncompliance and safety warnings.

Related: How weak regulations failed to prevent catastrophe at notorious Midland dam 

“When there's public safety at stake, you don't have conversations. You actually do something about it,” said Hiba Baroud, a professor of civil and environmental engineering at Vanderbilt University who specializes in risk analysis of infrastructure. 

“Nature is not going to wait until these issues are resolved within a system. If it’s going to rain, it’s going to rain and you're going to have to deal with it.”

Michigan environmental officials have defended their handling of the Edenville Dam in the aftermath of the May 19 flood, saying they were amid a study of the dam’s safety. An initial state inspection deemed it in “fair structural condition” in October 2018. 

A more complete report was expected in March. It still hadn’t arrived when heavy rains punched a hole through the Edenville Dam’s earthen embankment, unleashing a torrent of water that also overwhelmed the Sanford Dam and forced 10,000 people to evacuate in Midland, Gladwin and Saginaw counties.

The Federal Energy Regulatory Commission, the national agency responsible for regulating dams that produce hydroelectric power, had produced decades of scathing reports about the potential dangers of the Edenville Dam. 

The dam was rated in poor condition and had high downstream hazard potential, which means at least one person would be expected to die if it fails. 

Federal regulators made that clear in years of legal prodding to the private dam owner, Boyce Hydro Power LLC. In a 2017 compliance order, they wrote Boyce’s “disregard for the severity of this situation is appalling.”

“The potential loss of life and destruction of property and infrastructure is grave should the project not be maintained,” the order read. 

That should have been a big “red flag” for Michigan inspectors to fast-track inspections and take action, said Denis Binder, a law professor at Chapman University in southern California who specializes in dam safety litigation.

“You can make your own good luck and you can make your own bad luck,” Binder said. “So for [Michigan regulators,] it’s not bad luck. It was probably a failure waiting to happen.”

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.

Long investigation, delayed action

When the federal government terminated Boyce’s license and the dam fell into the hands of state regulators, safety requirements dropped significantly as well. 

FERC regulations require dams to be able to safely pass 100 percent of the probable maximum flood (PMF), the amount of water expected in the most severe storm reasonably possible in the area. 

Michigan requires that dams meet only half of that, which federal officials consider one of the weakest design standards in the nation

It was clear the Edenville Dam didn’t meet the 100 percent requirement, but state regulators say they weren’t certain if it met the 50 percent one. 

Boyce was responsible for paying for the study and hiring consultants to study its dam, which the state would then sign off on. 

“That’s not always how such work is done, but it is fair to say it’s a typical arrangement,” Hugh McDiarmid Jr., a state energy spokesperson, wrote in an email to Bridge. 

State emails provided to Bridge show a state dam inspector told consultants in early 2019 that inspectors have received all PMF studies from Boyce and would begin reviewing them. This January, Michigan dam safety inspector Luke Trumble wrote to Boyce’s consultants, Spicer Group, that initial findings indicated the dam wouldn’t meet state standards.

“Factor in wave run up/set up, and the deficiency increases significantly,” Trumble wrote. “No big surprise there, but I wanted to have the calcs to support that assumption before EGLE makes a final determination on hydraulic adequacy of the dam.”

That finding, coupled with years of federal reports, should have compelled the state regulators to take temporary action to protect public safety until a permanent solution could be reached, said Baroud. She said operating the dam at a lower lake level could “allow for these extreme [rain] situations to occur without resulting in a disaster.”

“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. 

Otherwise, it would set the state up for a legal battle, McDiarmid said.

“Moving forward with enforcement without the Spicer report to verify the initial findings would have left the enforcement actions open to challenge – particularly if the Spicer report did not concur with the [January] assumptions [that the dam didn’t meet state standards] — further delaying improvements,” McDiarmid wrote in an email.

Protecting mussels

While the state awaited conclusive evidence about dam safety, it forged ahead with a lawsuit over the environmental impacts on lake levels, even though Boyce contended it conducted no studies into the matter.

In early May, Attorney General Dana Nessel sued Boyce on claims it killed “thousands if not millions of freshwater mussels” by lowering levels of Wixom Lake two years in a row without state permission.

Boyce alleged that was speculation because the state filed suit without “having first provided any validated scientific or other technical evidence” of mass mussel deaths, according to a federal lawsuit from the company against the state a few weeks ago.

Boyce also alleged the state was pressuring it to raise lake levels despite public safety warnings, a claim McDiarmid said is “really disingenuous” because the state was seeking compensation for breaking rules during past winter seasons, when there is little risk of rainfall.

He noted that Michigan has two safety inspectors and one supervisor to oversee 1,061 dams who, given the staffing constraints, moved “reasonably aggressively” against the dam. Binder and Baround said the state had an obligation to demand further safety measures as it awaited a final report.

“It's clear that the floodplain downstream endangers a major city. And to me, that would be on the high priority list for getting it right,” Binder said.

The Edenville and Sanford Dams may just be the beginning for Midland-area residents. As they work to dig out from catastrophic flooding, federal regulators now say two other dams owned by Boyce Hydro also were damaged in the rainstorm. 

In a letter sent Thursday to Boyce Hydro a regional engineer with FERC noted that “initial observations noted significant flood erosion damage of Smallwood Dam and some erosion of the downstream slopes of Secord Dam.”

FERC officials have directed Boyce to submit an incident report by June 16 detailing recent operating conditions at the Secord, Smallwood and Sanford dams. They also asked the company to report what flood-fighting efforts Boyce conducted and any repairs done at Smallwood and Secord during or following the event. 

The agency also directed Boyce to conduct forensic investigations at Sanford, Secord and Smallwood dams, which will happen as another investigation is happening at the state level. 

Michigan Gov. Gretchen Whitmer last week directed EGLE to investigate what caused the failure at Edenville, which it oversees.

That means the state environmental agency, at least in part, will be investigating itself, raising conflict concerns from state Republicans, flooding victim advocates and dam safety experts. 

Speaker of the House Lee Chatfield, R-Levering, wrote on Twitter that the state needs to ensure “the fox isn’t guarding the hen house.” 

Binder agreed, but said it’s not abnormal for Whitmer to have EGLE lead the investigation.

“They should hire an independent firm to do the inspection. That removes any taint of conflict of interest or lack of independence,” he said.

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Comments

Trifle
Sun, 05/31/2020 - 11:45am

Professor Baroud is right to hold Michigan regulators partly accountable for the Edenville Dam's failure. But she fails to acknowledge that, had the regulators moved faster, the dam would not have been fixed. The owner would have fought the state in court for years, knowing the legal fees would be far lower than the cost of the fixes.

Steve
Sun, 05/31/2020 - 8:28pm

The cost of Whitmer

Steve Schmidt
Sun, 05/31/2020 - 7:38pm

Cost of Whitmer

Anonymous
Mon, 06/01/2020 - 9:05am

No one cares about infrastructure until it's too late. The trend started with Reagan.

Matt
Mon, 06/01/2020 - 11:56am

You're right Reagn didn't care about a dam in Michigan. It wasn't his job. It was the state's job. He was supposed to worry about the Russians, which worked out well.

Robert Wynes
Mon, 06/01/2020 - 1:32pm

The State and Federal Government are responsible for this disaster. The State should have petitioned the Court to take action. It takes a lot of documentation but it’s very doable. Shame on them !

midddle of the mit
Mon, 06/01/2020 - 4:33pm

Look at all the ant-government people telling us that it is the fault of government for the owner not self regulating and shirking his responsibilities for decades.

Who will they blame when they drown the government and regulation in the bath tub?

Oh, they pretty much have already?

But it is still governments fault that republicans pulled the teeth from the regulators, because self regulation is what business does best.

Maybe the State should regulate these lakes that are behind private dams be drained until dam improvements can be made. Let's see how that works out. It is what they are saying they want.

Give it to 'em.

chief54
Tue, 06/02/2020 - 10:10am

Drain the lakes is a great idea, that should get someone's attention!

Matt
Tue, 06/02/2020 - 11:10am

"Look at all the ant-government people telling us that it is the fault of government for the owner not self regulating and shirking his responsibilities for decades." MoM, where the hell do you see this? I see no one defending the dam owner or saying dams shouldn't be inspected by anyone anywhere. You seem to often, always? to go off clearly without reading anything, into some uninteligible rant that fits some half thought out, imaginary notion bouncing around in your head, unreflective of anything. Suggestion, maybe read twice before you do this?

middle of the mit
Sat, 06/13/2020 - 9:21pm

Matt, sorry it took so long to respond, I am just here gathering information for another half thought out unintelligible rant for another post where the dam owner and the lakefront people are gathering their forces to blame the State.

https://www.bridgemi.com/michigan-environment-watch/edenville-dam-owner-...

Also, where do I see people telling me it is the States fault for loving mussels and not regulating a private construction? Uhh, you could start by reading any of the comment sections that have to do with this subject. I didn't say it was in the article. Bridge is a non partisan media outlet. The comment sections aren't.

Maybe if you comprehended what your fellow conservatives were saying, you would know they are blaming the regulator and not the regulated.

Remember mussels? How did she know the lake was being drawn down?

Inquiring minds want to know. Don't you?

middle of the mit
Sun, 06/14/2020 - 5:27pm

Addendum: Also, look at the title of the article. Also; [[[ Speaker of the House Lee Chatfield, R-Levering, wrote on Twitter that the state needs to ensure “the fox isn’t guarding the hen house.”]]]

Also...........These are republican talking points and m.o.s, that would be method of operation. They only believe in regulation when they come out as karens after regulation fails, telling everyone they care about them, but no one takes into consideration that it could have been stopped if we didn't hate regulation and paying for upkeep so much so that we keep taxes on the wealthy lower so they can make money. while the countries infrastructure falls apart.

That is why we need poor people to start carrying their weight and more.

Or am I not hearing conservatives telling me this, when those are the words that come out of their mouths?

Waterboy
Tue, 06/02/2020 - 2:52pm

As in many situations, the best solution is to have those who benefit from these dams pay for them.
Or better yet , free the rivers to run their natural course after slowly drawing down the ponds, of the dams that the owners refuse to pay for.

CTSTH
Tue, 06/02/2020 - 12:13pm

Midland has been Michigan's center of anti-regulatory sentiment for many years: Northwood, Mackinac Center, Rapanos, etc. I even seem to recall that there were some anti-regulatory billboards on M-30 between Edenville and Sanford some years ago (I can't quite be certain about that; my memory's not what it used to be). So, of course, now that damage has resulted, it's time to blame the state for not having a robust regulatory presence.

Michigan Observer
Tue, 06/02/2020 - 7:17pm

Now, let me get this straight. The article says, "In early May, Attorney General Dana Nessel sued Boyce on claims it killed “thousands if not millions of freshwater mussels” by lowering levels of Wixom Lake two years in a row without state permission." Then the article goes on to say, "Boyce also alleged the state was pressuring it to raise lake levels despite public safety warnings, a claim McDiarmid said is “really disingenuous” because the state was seeking compensation for breaking rules during past winter seasons, when there is little risk of rainfall." So, the state was going to seek damages for lowering water levels, and also seek damages for raising them. So Boyce was going to face damages no matter what they did. Is that correct? They are only allowed to do what the state commands them to do and cannot do anything without state approval? Really?

And where was Bridge all this time? It is a trivially simple matter to see what should or should not have been done in retrospect, after the event. It is a far more difficult matter to provide citizens useful information when it mattered.