Michigan sues dam owners for drawdown that put sediment in Kalamazoo River

Michigan Attorney General Dana Nessel is suing the owners of a Kalamazoo area dam, seeking money damages and the cleanup of thousands of cubic yards of sediment that washed into the Kalamazoo River during a reservoir drawdown that began in 2019, burying large swaths of the riverbed.

The civil lawsuit, filed Tuesday in Ingham County Circuit Court, alleges that two subsidiaries of a Canadian government-owned hydropower company acted with “gross mismanagement and blatant disregard of public safety and destruction of natural resources” when they abruptly lowered the water level behind Kalamazoo County’s Morrow Dam to repair the dam’s gates.

The state alleges the drawdown, which lasted for more than a year, released hundreds of thousands of cubic yards of sediment downstream. Mud up to 12 feet deep in spots has created public safety hazards, buried animals and their habitat, and hindered river recreation, according to Tuesday’s filing, which was made on behalf of the Michigan Department of Environment, Great Lakes and Energy (EGLE) and the Michigan Department of Natural Resources.

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The harm was avoidable, the lawsuit alleges, if only the companies, Michigan-based STS Hydropower LLC and Delaware-based Eagle Creek Renewable Energy, LLC, both owned by Ontario Power Generation Inc., would have listened to state and federal regulators who told the dam’s owners to put sediment controls in place before lowering the reservoir.

According to a state timeline, Eagle Creek notified EGLE on October 31, 2019 that it would be lowering the reservoir immediately, citing an emergency need to repair issues the dam’s government overseers at the Federal Energy Regulatory Commission (FERC) had first identified two years earlier. 

FERC directed company officials in November 2017 to repair gates that control water flow out of the dam. But company officials failed to fully address the identified problems, the lawsuit alleges. Then, a company inspection in 2019 revealed further damage to the “trunnion arms” that support the gates, prompting the drawdown decision.

State officials urged the owners to seek alternatives to a full drawdown and recommended ways to prevent sediments from migrating downstream, according to a state timeline. 

But while Eagle Creek slowed its drawdown rate and later moved mussels that had been stranded by the drawdown, state officials allege company officials ignored their pleas to put adequate sediment controls in place. And, the suit contends, company officials did not seek state permits for the drawdown until after-the-fact. The result: Sediment washed downstream in quantities great enough to bury a football field 173 feet deep. MLive has documented the widespread environmental damage.

In the years since, state regulators have repeatedly ordered Eagle Creek to repair the environmental damage, but the state contends the dam owners have made little progress. Its owners have so far cleaned up less than a percent of the downstream sediment, according to Nessel’s suit.

“The lack of urgency by the companies to address these hazards left no other alternative than to take this civil action,” Nessel said in a statement. “STS Hydropower, LLC, and Eagle Creek Renewable Energy, LLC, should now bear the burden of repairing the damage and being held accountable for neglecting legal obligations.” 

Eagle Creek officials did not immediately respond Wednesday to a request for comment from Bridge Michigan. In a statement, STS officials said the drawdown was necessary to prevent public safety risks. 

In an apparent reference to the 2020 Midland dam failures that happened after floodwaters breached a dam that regulators had repeatedly cited for needed repairs, the statement from STS said failing to lower the reservoir behind Morrow Dam “could have resulted in a downstream disaster similar to other events, in Michigan and elsewhere, where dams suffered unexpected and immediate failure.”

STS said in its statement that company officials had been in “active settlement discussions” with state officials before the lawsuit, and remained “open to a fair resolution — in court or otherwise — that takes into account all the circumstances and the best interest of everyone involved."

EGLE Director Liesl Clark said in a statement that state regulators prefer to work cooperatively on environmental cleanups, but “in this case the responsible party has not fulfilled their obligations to the law and the community.” 

The lawsuit seeks punishment under the state Natural Resources and Environmental Protection Act and under common law, including asking the court to order the companies to clean up the damaged river, plus fines amounting to tens of thousands of dollars a day, money to compensate for damage to natural resources, and reimbursement for the state’s regulatory and legal expenses.

Two Kalamazoo lawmakers are also pursuing changes to state law that would give regulators more ability to order immediate fixes in similar environmental emergencies.

The bills by Kalamazoo Democrats Sen. Sean McCann and Rep. Julie Rogers would amend state environmental law to give EGLE authority to issue emergency orders without waiting out long negotiation periods when a situation on an inland lake or stream could harm “public health, safety, welfare, property, or the natural resources or the public trust in those natural resource.”

McCann applauded Nessel’s lawsuit, and vowed in a statement Wednesday to pursue “all avenues for immediate cleanup of the river,” while the case proceeds. Both bills are in committee, where they have received first hearings.

In the meantime, environmental advocates are watching with worry as the sediment continues to migrate downstream, burying habitat for fish and wildlife and hindering fishing and paddling. In January, golfers rescued a man who was stuck in waist-deep mud in the river.

“I like to refer to it as a rolling tragedy,” said Cheryl Vosburg, executive director of the Kalamazoo River Watershed Council.

Vosburg said she’s happy with the state’s effort to make the Morrow Dam owners clean up the mess. But she worries that nothing is being done to contain the sediment in the meantime. Someone should at least install sediment traps in the river to keep the mess from spreading, she said. 

“Every minute they delay in doing those things is just extending the damage,” she said.

Vosburg panned the STS Hydropower’s characterization of the drawdown as a public safety emergency, and laid blame on federal regulators at FERC for failing to in its oversight of the dam’s safety.

“How did (the dam) ever get to that level of disrepair in the first place, if you're so concerned about public safety?” Vosburg said.