State orders fixes to part of Edenville Dam; Boyce Hydro says it can't afford it
State regulators ordered the owners of the Edenville Dam on Thursday to perform emergency repairs to the portion of the dam serving the Tobacco River, but Boyce Hydro claims it can't afford to do the work.
The emergency order requires Boyce Hydro to immediately hire a contractor and provide proof by Monday. Construction must begin by Oct. 19.
If the company fails to meet its deadlines, as officials have speculated, the state will undertake the work and charge Boyce.
The work to be completed would lower or breach the Tobacco River spillway so that it stops draining into the Tittabawassee River side of the dam, as has been the case since the earthen embankment on the Tittabawassee breached amid historic rains in mid-May.
The continued diversion of Tobacco River waters into the Tittabawassee makes it difficult to fix and stabilize the embankment on the Tittabawassee side of the Edenville Dam, said Liesl Clark, director of the Department of Environmental Great Lakes and Energy.
“We don’t want residents who live downstream to face another devastating flood," Clark said. "Boyce needs to step up and do what’s right for the community and property owners, make sure that no further damage is done to natural resources and allow for critical infrastructure work.”
The work would restore partial flow to the Tobacco River, lower impoundment levels on the Tobacco side and ensure that the river is restored to the path it followed downstream of the dam before the flood. State officials hope the redirection of the Tobacco River will alleviate strain on the M-30 bridges, which collapsed during the flooding.
"Without a way to relieve pressure from water held back by the Tobacco side of the dam — which could be exacerbated by just a one- to two-year flood event, which is highly likely over the next year — a collapse could unleash a 10- to 15-foot wave of water that would severely affect properties and infrastructure downstream," the state said in a news release.
Boyce Hydro lawyer Lawrence Kogan said the company can't afford to do the work the state was demanding and planned to argue as much at a Sept. 24 hearing on the emergency order.
He argued that the state's claims that the remaining portion of the dam was unsafe were political, a play to drive down the value of the dam so that Four Lakes Task Force would have a better chance at gaining ownership of the dam through condemnation proceedings.
"The state again is bypassing the federal district court and the rule of law, preferring instead to rely on its kangaroo administrative process to secure a tactical advantage," Kogan said.
The state said its primary concern is the safety of people downstream and rejected arguments that it didn't have the authority under law to issue an emergency order.
"Whoever owns the dams is immaterial, that’s a business decision between Boyce and any possible buyer," said Nick Assendelft, a spokesman for the Department of Environment, Great Lakes and Energy. "Any owner is expected to abide by the same rules that every other dam owner in Michigan has been able to follow with little difficulty."
State officials have alleged Boyce Hydro, which had a history of non-compliance with state and federal regulators prior to the flood, has slow-walked inspections, communication and repairs since the breach of the Edenville Dam on May 19. Earlier this month, state environmental officials said they were doubtful Boyce would comply with an emergency order.
If it undertakes the work itself, the state believes the project may be eligible for grant funding that would cover 75% of construction costs and 7.5% of engineering costs.
The inspection of the Tobacco River side of the dam was undertaken by the state in August after it said Boyce Hydro failed to complete a comprehensive review of the structure's safety.
Boyce Hydro filed preliminary engineering reports in June noting tension cracks, erosion and sloughing on the Tobacco River side of the dam, but a judge ordered the company to perform additional inspections.
The state took those over in August, citing Boyce's bankruptcy and alleged unresponsiveness to the court's order.