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Opinion: Improved legislative oversight needed to prevent future dam failure

Jim Townsend

By now, most of us have seen the awful images of flooded mid-Michigan communities and thousands of evacuees who must simultaneously contend with the potential loss of their homes while trying to stay safe from the COVID-19 pandemic.

Preliminary reports indicate that two dams, the Sanford and Edenville in Gladwin and Midland counties, succumbed to rising water levels triggered by massive rain storms earlier this week. The Federal Energy Regulatory Commission (FERC) licensed and regulated these hydroelectric dams and, according to recent news reports, began citing the dams back in 1999 for having designs that were inadequate to contend with a major rain event.  

How is it possible that dams capable of flooding and endangering tens of thousands of local residents could be allowed to operate for 20 years after the federal government stated that they were inadequately designed? How could the federal or state government have allowed the transfer of the license for the dams to a new owner in 2004 — five years after concerns about the dams’ safety had been identified — without first requiring that improvements to the dam be made? Thankfully, there have been no reported injuries or deaths connected with this incident, but thousands of mid-Michigan residents and property owners must be asking how this could have happened when the government and the dam owner had so much time to address design problems that may have caused this catastrophe?

Legislators were advised that Michigan's dams needed attention back in 2016, Townsend writes.

There’s a lot to unpack in this incident, but it’s clear that better oversight by federal and state authorities — most importantly, Congress and the Michigan Legislature — could have prevented this catastrophe.

According to the Michigan Department of Environment, Great Lakes and Energy, Michigan has around 2,600 dams, 99 of which are hydroelectric, like the Sanford and Edenville dams, and are therefore regulated and licensed by FERC. Still, the state government and local authorities retained some jurisdiction to regulate these hydroelectric dams, especially after the Edenville dam’s federal license was finally revoked in 2018. For example, state authorities objected to the plans of the Edenville dam’s owners to lower lake levels during the winter.

Over the last several years, the state and industry groups have issued dire warnings about the condition of Michigan infrastructure, including its aging dams. About two-thirds of Michigan’s dams have reached their 50-year useful life, and 80% will reach the end of their useful lives within the next three years; that’s according to a report by the Michigan Section of the American Society of Civil Engineers from 2018. The report also found that 300 dams in Michigan have a “high” or “significant” hazard potential rating. 

In 2016, in the aftermath of the Flint water crisis, the Snyder administration convened a special panel to review the state’s infrastructure needs. The panel’s 21st Century Infrastructure Commission Report, found that dams don’t get the attention they deserve and called on the state to take a series of steps to address this situation, including:

► Maintaining publicly accessible geospatial data about the number, condition, risk and ownership of public and private, regulated and nonregulated dams;

► Developing publicly available decision support tools and training programs to assess risk, reinvestment and removal options for dams and low-head barriers;  

► Supporting removal and maintenance of dams depending on the individual risks and benefits of each dam with an investment of $227 million of state funding over 20 years.

Michigan residents, especially the thousands of people who have had to evacuate their homes this week, have a right to expect that the federal and state government take seriously these warnings and recommendations for action to avert disaster.

The dam breaks reveal weaknesses in our federal and state regulatory structure and demand bipartisan, in-depth fact finding about how we fell victim to these calamities and what we need to do to prevent them. Most clearly, they are a call on our democratically elected representatives to come together across party lines to recommit to the work of legislative oversight, to pursue the facts wherever they lead, and to give the people of Michigan the kind of government they deserve — one that, at a minimum, keeps them safe.   

Jim Townsend is director of the Levin Center at Wayne State University Law School and a former member of the Michigan House of Representatives where he served as minority vice chair of the House Oversight Committee.