After assuming jurisdiction over the Edenville Dam in 2018, EGLE completed an initial inspection and engineering review.[21] This short inspection report, completed in October 2018, noted the dam had been maintained in “fair structural condition” by Boyce Hydro, with its “earthen embankments … well maintained, with only a few bare spots, minor erosion, and no visible signs of significant distress (sloughs, slumps, differential settlement, cracking, sinkholes, etc.).” The report explained that drains were functioning properly, but that the concrete spillways did show signs of “moderate deterioration (spalling, exposed reinforcing steel, minor cracking and efflorescence.” Despite that deterioration, the spillways were described as “stable and functioning normally.” The state’s engineer reported that “there were no observed deficiencies that would be expected to cause immediate failure of the dam.”
After the dam’s failure on May 19, 2020, the department claimed that it had “strong concerns” about the dam’s limited spillway capacity when they assumed jurisdiction in 2018.[22] Despite this claimed concern, it is important to note that EGLE’s initial inspection report did not recommend repairs or upgrades to the dam. Although the report did briefly note the revocation of the FERC license, it did not mention limited spillway capacity and did not recommend further inspections.
After the flood, EGLE officials also stated they were waiting on a structural assessment of the dam to confirm whether the dam complied with the state’s spillway capacity regulations. They note the report had been expected in March 2020, but it had not yet been submitted to the agency.
Lawyers from both Boyce Hydro and the FLTF have questioned these claims because FERC’s safety reports on the dam were made available when EGLE assumed regulatory authority. According to the Spicer report, there were eight safety and inspection reports, dating from 1973 to 2015, that were available for review. They also note that the initial findings of the Spicer report, which include information from a summer 2019 inspection, pointed out that the dam lacked sufficient spillway capacity to meet state regulatory requirements of 50% of PMF.
Both the FLTF and Boyce Hydro maintain that the results of these inspections had been communicated, verbally and in writing, to EGLE in September 2019.[23] Furthermore, the FLTF has explained that Spicer did not submit the final report to the state because EGLE verbally instructed them to retain the report due to “concerns related to classified information.” The State subsequently and inaccurately characterized this in written correspondence as a ‘refusal’ to provide the information.
Throughout their period of jurisdiction, EGLE appeared to prioritize environmental concerns over spillway capacity.[24] State regulators expressed concerns about the water levels in Wixom Lake and the potential impact drawing it down might have on the endangered snuffbox mussel (Epioblasma triquetra) and other freshwater mussel species.[*] EGLE records indicate that an October 2018 citizen complaint triggered an onsite inspection of the dam, which found water levels 4.1 feet lower than normal.[25]
Similar lake levels were noted in two November 2018 inspections. But a May 22, 2020, email from EGLE spokesperson Nick Assendelft claims that EGLE did not require Boyce Hydro to alter water levels. Assendelft stated, “Boyce is the one who sought approval to raise the lake levels in the spring of 2019 and 2020 after their unauthorized drawdowns.” An EGLE document showing a chronology of events says the department issued a permit to raise lake levels after the request was made by Boyce. That permit approval was followed by a May 28, 2019, Midland Circuit Court ruling that also ordered Boyce Hydro to increase lake levels.
But in a public statement Boyce Hydro protested that they were put “under pressure from shoreline residents of Wixom Lake, the EGLE and the [Michigan] DNR…to raise the water to its normal summer level” in both 2019 and 2020.[26] This protest appears consistent in that, despite the court order and permit approval, the company continued to seek permission to lower lake levels throughout 2019, inviting site visits and submitting a permit application in September of that year to allow an eight-foot drawdown.
That permit request was denied by EGLE in November 2019. However, the company appealed the denial and proceeded with their plans to draw down lake levels. Staff and legal counsel for Boyce argue that the drawdowns in 2018 and 2019 were carried out to ensure “the safety of the dam and operators under hazardous winter conditions” and “due to concern for the safety of [the dam’s] operators and the downstream community.”[27]
These drawdowns appear to mirror an ongoing effort on the part of the company to lower water levels in both the summer and winter. They did this in 2010 to allow repairs and to ensure the earthen embankments did not become saturated.[†] They also suggested drawdowns were necessary in 2013, when FERC was threatening the possibility of the dam losing its federal license due to limited spillway capacity. At that time, Lee Mueller, co-member manager of Boyce Hydro reported his concern that FERC might require the company to “breach the spillway structures and return the Tittabawassee to its original structure.”[28] Mueller also suggested that FERC was requiring Boyce to develop a flood plan that could see water levels in Wixom Lake lowered by eight feet “to offer a safety buffer for flood water discharge.” Boyce also pushed to lower fall and winter water levels to reduce maintenance issues and employee safety concerns caused by ice buildup on the dam’s spillway gates, which had become a larger issue after the company lost its federal license and water was no longer allowed to flow below winter ice, and through the hydroelectric turbines.
But, in their post-flood public statement, Boyce argues that in April 2020, pressure from residents, EGLE and the Michigan Department of Natural Resources, including threats of a $300 million dollar lawsuit for alleged damages to freshwater mussels, forced them to raise the water levels in Wixom Lake to their normal summer levels.[29] Boyce Hydro’s statement wraps up noting that they sued “EGLE, the MDNR and certain high-level officials in those agencies in the U.S. District Court for the Western District of Michigan [on April 29] for multiple violations arising out of their regulation and oversight of the Edenville Dam.”[30]
On May 1, the Michigan attorney general, EGLE and MDNR responded by suing Boyce in the circuit court of Ingham County for “dramatically lower[ing] the level of Wixom Lake for an extended period in [December of] both 2018 and 2019 … causing the death of thousands if not millions of freshwater mussels many of which are federally endangered.”[31]
Mueller claimed the legal pressures being applied against his company by state regulators demonstrated EGLE “clearly care more about mussels living in the impoundment than they do about the people living downstream of the dam.”[32] Boyce Hydro’s lawyers also countered that the state’s charges regarding mussel deaths are without merit. “Given the failure of the U.S. Fish and Wildlife Service to conclue that Wixom Reservoir even constitutes the ‘habitat’ of the endangered snuffbox mussel, and to designate/declare a ‘critical habitat’ for such species, the demand[s]…made upon Boyce are without foundation.” They pointed to the recent SCOTUS ruling in Weyerhauser v. U.S. Fish and Wildlife Service, “holding that a ‘critical habitat’ cannot be designated” without first determining the ‘habitat’ of an endangered species.”[33] State of Michigan resources also appear to be giving contradictory reports on the presence of an endangered species in this area as the MDARD “Endangered Species by County” website states that there are “No endangered species in this county” (for both Midland and Gladwin counties.)[34]
But a May 22 email from EGLE spokesperson Nick Assendelft wholly rejects Boyce Hydro’s claims, arguing the company “never suggested that maintaining Wixom Lake at normal and legally-required levels was any kind of safety risk. Until now.” Assendelft pointed to Boyce’s “troubling track record of noncompliance and neglect,” and claimed that “Boyce’s assertion that its illegal emptying of Lake Wixom — to the detriment of property owners and the environment — was motivated by concern for the safety of local residents is false.” Instead, he argued, “the company’s concern has been about cutting costs, and it was apparently too expensive to prevent ice build-up and potential damage to the dam during the winter. Yet those are costs that every other large dam owner has to incur.”[‡]
Just over two weeks after the two court actions began, the heavy rains that brought on the dams ultimate failure began. Boyce Hydro claims it acted quickly, ahead of the coming storm, to once again begin drawing down lake levels.[35] But clearly, it could not draw down water levels quickly enough to allow the lake basin and dam to hold the flood waters. In the aftermath of the breach of the Edenville Dam, numerous additional lawsuits have been filed against both Boyce Hydro and Michigan EGLE, and more are likely to follow.[36] Another lawsuit has also been filed against FERC, claiming that the federal agency should not have granted Boyce Hydro a license to produce hydroelectricity without having first confirmed they had the financial capacity to manage and maintain the four dams.[37]
Demands for an independent investigation have been widespread and Gov. Gretchen Whitmer has called for EGLE to lead that investigation and coordinate with FERC in completing the task.[38] But Gov. Whitmer’s request has been widely criticized as unrealistic. EGLE Director Liesl Clark claims the manner in which the team was selected is “fairly typical.”[39] However, representatives of the state — Attorney General Nessel and Director Clark included — have openly and repeatedly laid full blame for the dam’s failure on Boyce Hydro, while defending the actions of the state government as wholly appropriate.
For example, Director Clark testified before a joint hearing of the Michigan Senate Energy and Technology and Environmental Quality committees on June 10, 2020. Despite admitting there is “a lot of investigating to do,” she assured the committee that “EGLE has been appropriately taking action to address concerns with the dam.” Later, she stated that there is “ample evidence right now that the Edenville Dam failed because of the owner’s neglect and violations of the law.”
Similarly, as described above, Lee Mueller of Boyce Hydro has claimed state government officials are to blame for the dam’s failure, charging they cared more about mussels than they did about humans.
But an independent investigation will be needed to validate or disprove Clark’s and Mueller’s claims. The investigation could show Boyce Hydro’s inability to maintain the dams was the cause, or a cause of the failure. It could also show that EGLE’s demand to raise the water from its December 2019 level to approved summer levels in the spring of 2020 played a role in the dam’s failure.[40] It may also implicate aspects of FERC’s multiyear regulatory interactions with Boyce.
With Boyce Hydro, EGLE, and now FERC embroiled in legal battles, these organizations should not be allowed to influence the investigation. This has not been the case so far, as highlighted by Michigan State Rep. Annette Glenn. She noted, “First, the investigators were chosen and paid for by the owner of the dams. Second, the investigators are approved by and overseen by the state agency responsible for the dams’ safety.”[41] While the initial investigation team put together has been recognized as both knowledgeable and professional, the involvement of both Boyce Hydro and EGLE in the development, selection, and oversight of the team will impact the credibility of the final findings.
The FLTF’s recommendation that the investigation team follow the example of the investigation into the Spencer Dam failure in Nebraska in March 2019 appears to be the most reasonable.
In this case, Nebraska officials and the owner of the Spencer Dam stood aside to allow the Association of State Dam Safety Officials to complete the investigation into the dam’s failure.[§] FLTF points out that independence was maintained in this investigation by ensuring that “neither the regulator nor the dam owner had any input on the selection of the team members or oversight of the team’s activities.”[42] A similar methodology was employed in the investigation of the 2017 Oroville Dam failure in California.
[*]The U.S. Fish and Wildlife Service describes the snuffbox mussel as a “small- to medium-sized freshwater mussel with a yellow, green or brown shell interrupted with green rays, blotches or chevron-shaped lines. The shell becomes darker and the interruptions less clear with age. Shell shape is typically triangular in females and oblong or ovate in males. Males can grow up to 2.8 inches, with females reaching only up to 1.8 inches.” They also specifically note that dams are the primary threat to this mussel as they impact water flow and water temperatures. See: “Plants and Animals: Snuffbox” (Michigan State University), https://perma.cc/XXC9-ED6T.
[†]An August 12, 2010, Boyce Power news release also lends support to the company’s contention that the dam embankments can be weakened if they become saturated. The news release describes their plans to engage in a FERC-approved “cautionary action in the interest of public safety.” The news release describes “a two-week phased draw-down of Sanford Lake,” that was completed to “reduce a recent build-up of hydrostatic pressure in the right side (western end) embankment that has resulted in a significantly higher than normal water saturation of the earthen dam.” The news release describes a 4’ to 4.7’ reduction in water levels that would last for “approximately three weeks” to allow for “remedial construction measures,” after which water levels would be restored. “Sanford Lake Draw-Down Press Release” (Boyce Hydro Power, LLC, Aug. 2010), https://perma.cc/24DW-H668.
[‡]Boyce Hydro representatives agreed that removal of ice buildup on spillways was essential to maintaining the dam infrastructure in working order, and that lowering water levels would reduce the need for ice removal. They also explained that their desire to avoid the activity was primarily an employee safety issue. They explained that ice reduction measures required staff or contractors to work in extremely dangerous conditions, effectively suspended over spillway gates, blasting ice build-up away from spillway gates with jets of heated, high-pressure water. Personal correspondence with Boyce Hydro representatives and the Four Lake Task Force on May 8, 2020.
[§]The ASDSO describes itself as “ASDSO is a national non-profit organization serving state dam safety programs and the broader dam safety community, which includes federal dam safety professionals, dam owners and operators, engineering consultants, emergency managers, manufacturers, suppliers, academia, contractors, and others interested in improving dam safety.” See: “Mission and Vision” (Association of State Dam Safety Officials, 2020), https://perma.cc/4GEG-DVPB.
