Would-be buyers of Edenville Dam criticize state, AG for muddying facts

Karen Bouffard
The Detroit News

An inspection report released Thursday that was underway before the Edenville Dam's May 19 failure confirms that it did not meet state capacity requirements before the flood.

The report affirms the state's January preliminary finding and comes amid biting criticism of state regulators and Attorney General Dana Nessel by the Four Lakes Task Force, a bi-county authority that had agreed to buy that dam and three others from Boyce Hydro.

Midland and Gladwin counties, on behalf of property owners, "were trying to get control of their future over a bureaucratic system that was failing us," the task force said in a statement. "We implore the attorney general to insist that her Environment, Natural Resources and Agriculture Division work from the facts and apply critical thinking to the problem and insist on it from all parties involved. Our devastated communities deserve that much."

The task force statement said its engineers told state regulators in September 2019 that the dam did not meet state standards.

The Four Lakes Task Force said it "does not believe” the dam met the state’s dam safety requirements, Michigan Department of Environment, Great Lakes and Energy spokesman Nick Assendelft said late Thursday.

"As we were building our knowledge of the dam’s history and current condition since taking over regulatory control in October 2018, it was extremely important to EGLE that we obtain the best and most definitive information," Assendelft said. "We anticipated that the receipt of the consultant’s report in March would be a key part in determining with certainty whether suspicions we and others had about the dam’s spillway capacity were accurate."

Lawrence Kogan, an attorney for Boyce Hydro, said the task force's contention that EGLE was aware of the dam safety reports and its belief that it did not meet the state’s probable maximum flood requirements is “absolutely true.”

In its statement, the task force also said the state had access to all dam safety reports from the Federal Energy Regulatory Commission after it revoked the Edenville Dam's license to generate electricity in September 2018. At that point, regulatory authority of the structure fell to Michigan's environmental department. 

The state suggested in filing a lawsuit against dam owners Boyce Hydro Power this week that it had difficulty obtaining information from FERC, suggesting this delayed its ability to get up to speed on the dam's condition. 

FERC revoked the license more than two decades after determining it could not withstand the maximum probable flood for that area, which is the federal safety standard, and having been unable to compel Boyce to expand its spillway capacity. The state's standard is half as stringent, requiring the dam's ability to withstand 50% of the maximum probable storm event.

It turns out that the dam could withstand neither, according to the engineer's report released Thursday. It was prepared on behalf of the task force by Spicer Group and submitted to the state on June 4.

The Four Lakes Task Force was created by Midland and Gladwin counties to purchase the dams and preserve the four lakes that they create (Sanford, Wixom, Smallwood and Secord). It announced on Jan. 2 a deal to buy the dams for $9.4 million and invest $100 million in upgrades to maintain their safety.

On May 19, more than four inches of rain fell on the Titabawassee River watershed, inundating the lakes. The National Weather Service has called it a once-in-200-year rainfall event, although some state officials have suggested without citation an even more infrequent interval.

Under the task force, alterations to expand the dam's capacity to handle bigger storms were expected in 2024, according to the Spicer Group inspection report.

Four Lakes Task Force has since halted its plans to purchase the dams. In a letter published on Tuesday, it said it still wants to proceed with an acquisition.

"We are still committed to our mission to acquire the property from Boyce and restore the damage created by this flood," the task force wrote.

In its statement, the Four Lakes Task Force said it agreed to prepare a dam safety report for the state because it expected to close on the sale in January. That closing, it said, was delayed because of difficulty with financing caused by legal fighting between Boyce Hydro and the state. The state sued Boyce on May 1 for allegedly killing rare freshwater mussels and damaging other aquatic life during an unauthorized lowering of lake levels in the winter.

The Spicer report, which the state expected in March, confirmed its suspicions, an EGLE spokesman said.

"We anticipated that the receipt of the consultant’s report in March would be a key part in determining with certainty whether suspicions we and others had about the dam’s spillway capacity were accurate," Assendelft said earlier Thursday. 

The Edenville Dam failed on May 19, draining Wixom Lake and overwhelming the downstream Sanford Lake and dam, which also failed. The failures prompted the evacuation of more than 10,000 residents, a shutdown of Dow Chemical Co. operations and caused an estimated $175 million in damage in Midland County.

The specific cause for the failure has not been determined. EGLE is investigating; the task force this week requested an independent investigation.

"We have been encouraged by the engagement of every federal and state agency coming into our community to help," the task force's statement read, before turning attention to state regulators and the attorney general. "Well almost."

kbouffard@detroitnews.com