Michigan AG sues dam owners, says weakened portion at risk of catastrophic failure

Beth LeBlanc
The Detroit News

Lansing — Michigan officials filed suit Tuesday against Boyce Hydro Power in a bid to hold the Edenville Dam owners responsible for widespread flood damage in the Midland area and recoup the taxpayer money spent to address the breach. 

The lawsuit filed in Ingham County Circuit Court would ask the court to set enforceable deadlines for fixing the Edenville Dam on the Tobacco River side, said Michigan Attorney General Dana Nessel, who is suing on behalf of the state environmental and natural resource departments. She noted the Tobacco River side is "still showing many signs of weakness" and the suit says that substantial unresolved cracks create a risk of more catastrophic flooding.

"When you cut through all the noise and you focus on the facts, it's clear that legal responsibility for the failure of the dam rests solely with the owner of the dam," Nessel said. 

Water rushes through the Edenville Dam, Tuesday, May 19, 2020, in Edenville.

"...If you chose to put your own interests above the safety of the public, then you will be held responsible to fullest extent of the law." 

Nessel said the state's claim was not meant to delay or impede the efforts of Midland-area residents seeking to sue Boyce Hydro in separate litigation and said the company should pay every person harmed by the flood. 

Boyce's attorney Lawrence Kogan did not immediately return a call for comment. 

Gov. Gretchen Whitmer asked the Department of Environment, Great Lakes and Energy to investigate what went wrong at the Edenville Dam shortly after it broke May 19, sending water surging over and around the Sanford Dam. 

The flooding amid historic rains led to the evacuation of roughly 10,000 people in the Midland area. 

The flooding in Midland was preceded by years in which Boyce Hydro failed to heed the warnings of the Federal Energy Regulatory Commission regarding Edenville Dam's spillway capacity and, later, regulatory efforts by the state. 

In the weeks following the dam breach, Boyce has tried to shift scrutiny to the state, which the company said had pressured its officials to raise water levels prior to the flood. 

Documents so far have shown the state's regulatory pressure and later legal action on May 1 were directed at Boyce's unauthorized drawdowns of lake levels in the winters of 2018 and 2019, action the state has argued led to the death of thousands of freshwater mussels.

Boyce Hydro applied in April to raise Wixom Lake levels, and EGLE granted the request because it was within court-ordered summer lake levels.

During a Tuesday press call, Nessel said recent accounts indicating state regulatory agencies and litigation had a role to play in the dam's failure were "factually inaccurate." She said the misdirection allowed the company to avoid "swift, sweeping and universal condemnation." 

EGLE Director Liesl Clark likewise said some of the coverage of the dam failure has been "baseless and insulting."

The lawsuit alleges violations of laws protecting the environment, water resources, inland lakes, wetlands and streams and statutes governing dam safety. Boyce Hydro’s actions also constituted a public nuisance, unjust enrichment and an illegal taking of aquatic life killed in the flood, according to the litigation. 

The lawsuit documents Boyce Hydro's 13-year failure to comply with federal demands to expand the Edenville Dam’s spillway capacity, which eventually caused federal regulators in September 2018 to pull the dam’s hydroelectric generation license and transfer jurisdiction to the state.  

When the state took over jurisdiction, it “had limited knowledge of FERC’s concerns related to the dam’s safety and spillway capacity during FERC’s jurisdiction over the dam,” the lawsuit said. Much of the information related to the dam was shielded “under federal critical infrastructure law.”

As the state took control of the dam, local stakeholders began to explore purchasing the dam with a $5 million state grant and obtained a court order requiring Wixom Lake to stay at a consistent level through the winter and summer, the lawsuit said.

The Four Lakes Task Force, working with the state, had developed a construction schedule to increase the dam’s spillway capacity but “tragedy struck before the task force’s plans could be fully realized,” Nessel's office argued in the suit.

The remains of the Edenville Dam, as seen on Wednesday, May 20, 2020 in Edenville Township north of Midland. After two days of heavy rain, the Edenville Dam failed and flood waters rushed south, ravaging the landscape in its path.

“If defendants had completed all of the necessary repairs to their dam, it is reasonable to conclude that the dam’s failure would not have occurred,” the lawsuit said.

“The complete human and environmental toll caused by defendants’ malfeasance remains to be fully realized and quantified, but there is no doubt it is devastatingly high,” the suit continued.

The state confirmed in the lawsuit that Four Lakes Task Force had completed a report on the dam's spillway capacity on June 4, even though it initially was expected in March. 

The state declined to release the report Tuesday because officials said it fell under protections afforded to critical energy infrastructure. The state also declined to say whether or not the report found the dam's spillway capacity met state standards requiring dams to be able to handle 50% of the worst possible flood event.