Michigan favors dam removal over repairs, prompting Edenville Dam aid rejection

Beth LeBlanc
The Detroit News

Michigan and federal officials have prioritized dam removal over dam repairs in their funding decisions, experts say, a trend a Republican state lawmaker argues is an "appalling" practice that values fishing concerns over public safety.

Nearly 80% of Michigan's $16.95 million in dam management grants awarded since 2012 have gone to dam removal projects, state officials testified in mid-June.

The remaining $16.95 million included a $1.65 million legislative earmark for a fish passage barrier, and $1.88 million in funding or 11% targeted dam repairs. 

The bias toward dam removal reflects a national move toward restoring natural stream paths and fostering fish habitat as well as an acknowledgment that, in some cases, removal is more cost-effective than repair, experts say. 

The funding priorities have come under new scrutiny after the privately owned Edenville Dam failed May 19, sending a surge of water down the Tittabawassee River and flooding the Midland area. The dam had been censured for years by federal and state regulators for non-compliance with safety and environmental standards. The owners consistently complained they didn't have enough money to make repairs.

Less than a year before the dam broke, the state Department of Natural Resources rejected a $1.6 million grant request for the dam’s repair. The proposal was turned down in part because the application came from new prospective owners, the Four Lakes Task Force, rather than the dam owners themselves and because the dam didn’t meet grant priorities.

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

Funding for dam removal largely is prioritized over dam repair because that’s the way the statutory language was written for the state’s available grant programs, said Jessica Mistak, habitat management unit supervisor for the Michigan Department of Natural Resources Fisheries Division.

Removal also tends to solve more permanently the problems surrounding the dam, Mistak told the Senate joint committees on Energy and Technology and Environmental Quality during a hearing last month. 

“Once a dam’s removed, it eliminates safety concerns,” Mistak said. “Because of that, dam removal often does score higher.”

But the process of having a dam owner apply for a repair grant through the DNR and get a proposal examined by biologists makes little sense when safety issues are at stake, said state Sen. Ed McBroom, R-Vulcan.

“I’m appalled at the fact that safety concerns have to go through fisheries and get vetted by biology rather than by public safety interests,” McBroom said.

On Friday, McBroom stood by his comments, noting the grants should be restructured if the language is written in such a way that fishery concerns are in competition with safety concerns. 

"The way we’re doing it right now is just not smart," he said.

Across the nation, as environmental awareness grew and liability issues with dams came to the forefront, removal became a more viable option than repairs in the eyes of regulators and owners alike, said Mark Ogden, a former Ohio dam safety official who is now a technical specialist with the Association of State Dam Safety Officials.

“I do think that more regulatory agencies over the years have presented that option to the dam owners than years ago when dam building was more of the norm,” he said.

Allegations of targeting

The policy favoritism has not sat well with Edenville Dam owner Boyce Hydro. In spring 2019 the company’s lawyer, Lawrence Kogan, published a 146-page article in a Michigan State University law review titled "The Europeanization of the Great Lakes States." The article largely aired grievances against state and federal regulators who he argued were violating private property rights in the pursuit of European-style environmental agendas. 

Kogan argued the state wants to turn the Tittabawassee River’s many dams to "run-of-river," which is considered more ecologically friendly because it uses the natural flow of the river rather than damming and flooding based on peak usage.

The DNR and the Department of Environment, Great Lakes and Energy, or EGLE, have looked at the Tittabawassee River in particular as ripe for a return to "run-of-river" operations because of the impact on "historical fish communities," Kogan argued. 

Given the state’s preference for dam removal, "it is not surprising that Boyce Hydropower LLC has been targeted" and "administratively harassed," he wrote more than a year before the dam broke.

But state officials said the conduct of the Edenville Dam’s owners is what prompted state action.

"Boyce Hydro has not been targeted," DNR spokesman Ed Golder said. "It has received attention from state and federal regulators because it has been a uniquely irresponsible and non-compliant hydroelectric project owner."

More recently, Kogan cited the state’s multimillion-dollar lawsuit against Boyce Hydro’s Edenville Dam as further proof of prizing ecological goals over human safety. Boyce Hydro owns three other dams on the Tittabawassee River: Sanford, Smallwood and Secord. 

In May, the state sued Boyce Hydro for unauthorized drawdowns in 2018 and 2019 that led to the alleged deaths of millions of mussels in Lake Wixom. The suit was pursued at the same time the state was working to confirm whether the dam met flood capacity standards.

The DNR’s goal is to minimize environmental impacts and typically recommends dam operations "that mimic natural river conditions," protect natural resources and secure recreational pursuits, Golder said. 

But in Boyce Hydro’s case, the state argued it was attempting to facilitate the sale and rehabilitation of the Edenville Dam through a $5 million funding earmark by the GOP-led Legislature and support for a special assessment district that would fund ongoing maintenance. 

The agency did send a "number of letters" to Boyce Hydro and regulators with the Federal Energy Regulatory Commission regarding concerns about the company’s alleged noncompliance with federal licensing rules, Golder said. 

"Some of these concerns, such as inadequate recreational amenities or access to recreational amenities, were raised by members of the public," Golder said. "The DNR never targeted or otherwise pressured Boyce to remove any of the four dams."  

Funding priorities questioned

Lawmakers peppered the DNR’s Mistak and two other department employees at a June 16 hearing about the Dam Management Grant program, which had denied a $1.6 million grant request last year from Four Lakes Task Force for fixing the Edenville Dam.

The dam management grant, one of three grants available under the Fisheries Habitat Program, has ecological and human health and safety objectives, said Joe Nohner, a coordinator for the DNR's Inland Lakes Habitat Analyst & Midwest Glacial Lakes Partnership.

Applicants usually first consult their local DNR fisheries biologist and then submit a pre-proposal to DNR officials, a practice inconsistent with the grant program’s objective of public safety, McBroom argued at the hearing.

The Upper Peninsula senator criticized the DNR for not requesting more funding if that’s what officials needed to address safety concerns. Mistak later clarified that DNR directors had asked for more money.

Sen. John Bumstead, the Newaygo Republican who chairs the Natural Resources and Environmental Quality Appropriations subcommittee, acknowledged McBroom’s comments about public safety but contended that tight General Fund budgets can’t provide the vast amount of cash needed to fix Michigan’s infrastructure.  

In 2016, Republican Gov. Rick Snyder’s administration's 21st Century Infrastructure Commission recommended spending $227 million on dams over 20 years.

“Unless this body is willing to put in $4 million to $5 million a year, we’re not going to get anywhere,” Bumstead said. “I’d be happy to spend more money on dam removal, but we don’t have it.”

EGLE, which typically is tasked with dam safety, has a limited budget and staffing. The agency’s dam safety unit receives about $350,000 annually for two dam safety engineers and a supervisor who manage about 1,060 dams.

While Kogan complained about the DNR’s grant program favoring dam removals, his client also never applied for a grant prior to Four Lakes’ 2019 application.

“Boyce had spoken to people in the Legislature," Kogan said. "And they were advised that it wasn’t going to get him anywhere."

Kogan argued Michigan’s regulatory structure doesn’t favor funding help for private dam ownership, but is more than willing to work with utility companies when they ask for a rate increase to support capital improvements.

The Michigan Public Service Commission only becomes involved in oversight of a dam’s hydroelectric rates if the dam is supplying power to a utility regulated by the state. In that case, the state would approve the negotiated contract between the utility and dam owner, commission spokesman Matt Helms said. Such was the case with Boyce Hydro’s dams, which supplied power to Consumers Energy. 

Lawmakers prioritize repairs

The biggest spending on dam repairs in Michigan came when legislators used one-time fluxes of cash in end-of-the-year supplemental budgets to target certain dams.

The Republican-led Legislature and Snyder administration made one-time funding additions of $2 million in fiscal year 2013 and $3 million in fiscal year 2016. For fiscal year 2019 lawmakers added $1.5 million, then another $8 million in a late-year supplemental.

Roughly $5 million of the 2019 funding was earmarked for dam improvements in Midland and Gladwin counties and deposited in the Four Lakes Task Force account on Sept.19 to be used for an analysis of the Edenville Dam. Sen. Jim Stamas, R-Midland, pushed for the money while helping to facilitate negotiations among Four Lakes, Boyce Hydro and state regulators.

That analysis was finished June 4, after the Edenville Dam failed, and belatedly revealed the dam didn’t meet flood-capacity standards. The state had suspected as much since early 2019 but had been unable to definitively confirm the deficiency.  

The underfunding of dams is easier to ignore than shortchanges to other infrastructure like roads and bridges, said Laura Rubin, director of Healing Our Waters Great Lakes Coalition, a conservation group. But, occasionally, dam failures bring the issue to the forefront, as was the case in the Midland area, she said. 

"There are funding structures to pay for maintenance, it’s just that we have so many dams that all of them haven’t taken advantage of this," Rubin said. "A lot of our regulatory authorities and bodies — we’ve seen this with EGLE — they’ve just been gutted financially, so we really don’t have regulatory authority or teeth to manage this.”

How feds treat dam aid

Many state and federal dam funding issues come down to who benefits and who should pay, said Daniel Hayes, a professor of fisheries and wildlife at Michigan State University. 

If a dam benefits the owner through hydroelectric revenue and property owners who use the structure recreationally, those parties arguably should pay for it, said Hayes, whose MSU job is in part funded by the DNR.  

"There are plenty of cars on the road that are unsafe, so is it up to us as a society to fix them?” Hayes said. 

The balance between cost and benefits has shifted as dams age and profits lag the cost of repairs and maintenance to keep up with state and federal standards. 

"There is a trend of removing dams, and much of the motivation is this aging infrastructure, this loss of any kind of positive benefits,” Hayes said. 

Special assessments, grant funding and user fees can help to pay for maintenance, but those prospects are complicated when a dam is privately owned, Rubin said. The state and private owners alike also need to examine which dams have outlived their usefulness.

"It’s time to strategically look at where we have high maintenance, high restoration needs, and see where we should be restoring and where we should be removing,” she said.

Nohner and Mistak told legislators they were unaware of any readily available federal funding programs for dams. The $375 million-a-year Great Lakes Restoration Initiative largely doesn’t fund dam repair programs whose primary objective is safety, said Chris Korleski, water division director of the U.S. Environmental Protection Agency’s Region 5.

Rather, the fund is intended for dam-related projects that meet the initiative’s environmental protection and restoration mission. Additionally, only a small number of the projects undertaken by the initiative involve privately owned dams. 

During the past 10 years, dam projects addressing fish passage and connectivity have gotten more attention than those that maintain a manmade structure — be it a dam or a culvert, Korleski said. 

"We certainly try to target those activities where we can have the biggest positive impact on enhancing native habitat," he said.