After Edenville Dam gave way on May 19, 2020 , and overwhelmed the downstream Sanford Dam — pushing about 10,000 Midland -area residents to evacuate — government documents revealed years of non-compliance with state and federal standards, a fumbled hand-off of oversight between the feds and state, and an underfunded dam safety effort ill-equipped to hold the dam owner to task.
A year later, residents are looking at a $215 million price tag to restore the emptied lakes with the earliest dams of four area dams completed by 2024 and the latest by 2026. Residents will be assessed to pay for the repairs, but community leaders also hope for some help from the governments meant to regulate the dams.
Residents and insurance companies have filed more than 40 lawsuits against the owner of the dams, Boyce Hydro, as well as state and federal regulators. Several suits have been dismissed by the parties, but 25 active cases seeking millions of dollars in damages remain active in state court. Court of Claims Judge Cynthia Stephens is considering the state's request to dismiss the cases.
Boyce Hydro filed for bankruptcy last year and entered a settlement agreement in February that provides about $3 million in liability coverage to cover millions of dollars in claims made by banks, insurance companies, the state and residents.
Boyce's bankruptcy settlement will release the company from further litigation and residents will get "next to nothing," said Ven Johnson , a lawyer representing about 3,000 people suing the state for damages incurred in the dam failure.
Johnson is pushing the state and federal governments to settle with the claimants rather than drag out the lawsuit on appeal. He said the claimants' argument is nearly "identical" to what was argued in the Flint water civil cases where, six and a half years after the crisis, residents have yet to receive their share of the state's $641 million settlement.
"If it looks like a footprint or a repeat of the Flint water (crisis), that's exactly what's happening," Johnson said.
Boyce Hydro — which failed to comply with federal and state directives for years — has had its mid- Michigan dams claimed through eminent domain or by government taking.
Its lawyer hasn't wavered in his animosity toward the state nor from his arguments that place the blame at the feet of state and federal governments.
"You've got institutional issues in your state that are deep and issues that are difficult to resolve because of the lack of political willpower," said Lawrence Kogan , a lawyer for Boyce Hydro.
The state agency overseeing dams, meanwhile, is doubling the number of its safety engineers — from two to four — and is working through a raft of recommended improvements from outside groups. A forensic review of the dam failure is likely to be completed later this year.
There still are lessons to be learned, some of which won't be fully understood until the forensic report is completed, said Lucas Trumble , supervisor for the state's Dam Safety Unit. For now, the Edenville Dam failure offers some immediate warnings.
"We have to do a better job in the future of investing in infrastructure and do a better job of being proactive in dam maintenance and investment," Trumble said.
More staffing, more funding
In the days after the flood, shortcomings in state dam regulations and funding became immediately apparent.
At the time, the Michigan Department of Environment, Great Lakes and Energy's dam safety unit received about $350,000 annually for two dam safety engineers and a supervisor who manage about 1,060 dams.
The department has since increased engineers to four positions — one of which still needs to be filled — and one supervisor. An outside report on the dam failure recommended the office have 11 staffers.
In addition, the structure of the state's dam management grants prioritized dam removal over dam repair, awarding about 80% of Michigan's $16.95 million in dam management grants to dam removal projects since 2012.
About a year before the Edenville Dam broke, the state Department of Natural Resources rejected a $1.6 million grant request for the dam's repair 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.
The Department of Environment, Great Lakes and Energy has asked for about $15 million in the 2021-22 budget to form an emergency fund the state could use to make loans to owners of dams desperately needing repairs or make the changes on its own. The state has five high hazard dams in poor condition; Edenville was the sixth before its failure.
The emergency funding would be similar to what was spent at the end of last year and into this spring to make emergency changes at the Edenville Dam to stabilize it while the Four Lakes Task Force worked on long-term plans for the structure.
"The emergency fund would give us some access to funding to do that more often as needed," Trumble said.
The state is working through 86 recommendations prepared by the Association of State Dam Safety Officials to improve Michigan's regulation of the infrastructure. EGLE has begun to implement recommendations that don't require additional funding or policy by the Legislature, including an updated dam database, internal control and assurance policies and a portfolio risk assessment, ranking dams worst to best to prioritize focus.
"No major policy changes have happened other than we're working on implementing what we can internally and working with the Legislature when we can't do those on our own," Trumble said.
Still, the Dam Safety Unit leader was optimistic about the changes made over the past year.
"I can't say that dams won't continue to fail, but I think for the worst ones — the highest priority ones — we are working with the owners, and we don't expect we'll have any catastrophic failures before those repairs can be made," Trumble said.
What's ahead for lake dwellers
The Four Lakes Task Force estimates it would cost $215 million to repair and rebuild the Edenville , Sanford , Secord and Smallwood dams and restore the lakes behind each. The group's plan finalized this week would finish Secord and Smallwood in time to raise the lakes by 2024, Sanford in 2025 and Edenville in 2026, said Dave Kepler , chairman for the Four Lakes Task Force .
Kepler said he is hoping the federal government or the state government tasked with regulating the dams pitch in about $150 million to decrease the assessments on homeowners around the lakes.
Four Lakes Task Force has estimated the rebuild will cost each property owner on Secord a total assessment of about $11,353 over 40 years. The other assessments are $26,570 on Smallwood, $40,982 on Sanford and $43,159 on Edenville .
The task force has secured loans for the project through the U.S. Department of Agriculture but is hoping for a bit of goodwill from state and federal officials to offset costs.
"We're really advocating for about $150 million in funds to get this thing to an affordability level for homeowners," Kepler said. "If we don't, we have the financing to move forward. There really isn't an alternative to move backward."
Kepler feels confident in the plan, but he said there are worries others will forget about the challenges residents are facing. Some are still fixing their homes, removing debris or making peace with a vastly different landscape out their front windows.
"You get a lot of emergency response in the first few months and then you're kind of left on your own," Kepler said. "We're trying not to have that happen."
Fight continues in court
Even before the dams broke in 2020, the state was locked in litigation with Boyce Hydro in a debate that served as part of the basis for later flood-related lawsuits against the state of Michigan and the Federal Energy Regulatory Commission .
The federal government had long known the Edenville Dam lacked adequate spillway capacity, among other deficiencies, and scolded its owners for years before revoking its hydropower generation license in 2018.
With the license revoked, authority reverted to the state, which said it started from "ground zero" in understanding the issues with the dam.
For experts, the transfer from federal oversight to the state seems to be a key and unique circumstance related to the Edenville Dam failure.
"For years, it's been recognized that there's a clear need for funding for dam safety infrastructure nationwide," said Mark Ogden , technical specialist for the Association of State Dam Safety Officials . Uncooperative and underfunded owners, likewise, are not unique to Michigan , he said.
"But I'm not aware of similar issues with jurisdictional problems between the state and federal regulators."
But the lack of cooperation also isn't too surprising for some observers.
"It's partly structural," said Daniel Hayes , a professor of fisheries and wildlife at Michigan State University . "Because each group has authority over a piece and it all intersects at the dam."
The state conducted an initial inspection of the dam, which found it was in "fair structural condition." But it began a larger study to better understand the federal assessment of the dam's spillway capacity, in part at the behest of Four Lakes Task Force , an authority created by Midland and Gladwin counties to take ownership of and refurbish the dams.
The study, which was largely completed by Spicer Group in January 2020 , found the dam did not meet state flood capacity standards, which are half as stringent as federal standards. The state standard remains the same and would require legislative approval to raise the standard to federal levels.
While the Department of Environment Great Lakes and Energy studied the dam's spillway capacity, the DNR continued a years-long fight with Boyce Hydro over low lake levels that the department believed were killing native mussels.
The mussel battle was significant because a key method of preserving the mussels was raising the water levels, a measure that Boyce Hydro sometimes fought because of the dam's depleted spillway capacity and risks to workers and residents over the winter.
In April 2020 , weeks before the dam breach, Michigan granted Boyce Hydro a permit to raise water levels on Wixom Lake .
Days before the dams failed, the state of Michigan sued Boyce Hydro for mussel damages and Boyce Hydro sued the state in federal court arguing Michigan had no "validated science or other technical evidence" to show it contributed to the mussels' deaths.
Lawsuits began to flood federal and state courts soon after the breach.
Some have gradually dropped off in federal court, but 25 in state court that were consolidated remain pending against the Michigan Department of Natural Resources and the state Department of Environment, Great Lakes and Energy . A federal case against the FERC remains pending.
The suits pending in federal court include about 3,000 residents, said Johnson, who represents many of them.
"Throughout Michigan , there will be literally hundreds if not thousands of cases pending against the state and the federal governments seeking to hold both accountable for what clearly was a gross dereliction of duty by not utilizing enforcement powers that were available to them despite having 100% actual knowledge that the Boyce entities were doing nothing about fixing or updating the dams," Johnson said in a letter to state officials last month.
eleblanc@detroitnews.com
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