After federal regulators pulled the license of a Midland County dam because of the high risk it posed to the public in 2018, it ceded oversight to state regulators.
But with less stringent state safety rules to protect people and property, Michigan regulators turned their attention, instead, to the protection of delicate underwater life.
Days after feds revoked the dam's license to generate power, the state assumed oversight, inspected the dam and declared it and its spillways to be in "fair structural condition."
Over the next two years, state regulators appear to have focused increasingly on what they said was the company's unauthorized drawdown of winter water levels of Wixom Lake, which they said created a danger to freshwater mussels.
When the Federal Energy Regulatory Commission pulled the plug on the Edenville Dam power plant in 2018, it had a perhaps unintended consequence. It put the dam under state regulation, where it was believed to meet less stringent capacity rules and where its alleged efforts to maintain safety exposed it to state environmental regulation.
That fight landed the state and Boyce Hydro in state and federal court over the last three weeks. Boyce sued on April 29, charging that it was being unfairly targeted for enforcement. The state later accused Boyce of illegally lowering Wixom's water levels, killing millions of mussels.
"Defendants wrongfully exerted dominion over the freshwater mussels and caused their death, which denies and is inconsistent with the State's rights to them," the Michigan Attorney General's Office wrote in its May 1 lawsuit, requesting that the lake bed be restored and further reductions of lake levels be prohibited.
Boyce argued that it lowered water levels in part to conform to federal protocols because of the known threat of a dam failure in a substantial storm. In a statement late Wednesday, Boyce claimed it was pressured by the state as recently as April to raise Wixom Lake levels in order to appease shoreline residents.
The Edenville Dam, located at the border of Midland and Gladwin counties, failed late Tuesday afternoon and caused water to flow over and around a second dam, the Sanford Dam, downstream in the Tittabawassee River.
Heavy rains combined with high winds and wave action saturated an earthen dike at the east end of Edenville, washing out about 900 feet of the dam, according to the statement from the dam's owners.
Roughly 10,000 people were evacuated from their homes and residences and businesses were destroyed by the time the Tittabawassee River crested at 35 feet Wednesday evening.
Gov. Gretchen Whitmer and Attorney General Dana Nessel said Wednesday they would explore every legal recourse to pursue those responsible.
"This was a known problem for a while and that's why it's important that we do our due diligence and take action," Whitmer said during a press briefing in Midland on
The company, managed in part by Lee Mueller, sent out a statement Wednesday afternoon, saying the owners and managers were "deeply distressed by recent events."
"They have remained in ongoing contact with their dedicated personnel and apprised of the situation," said Lawrence Kogan, a lawyer for Boyce Hydro. "Their primary concern all along has been the safety and welfare of the many residents of the Gladwin and Midland County communities."
The transfer of regulatory authority over the dam from federal to state authorities only happened after years of efforts by FERC to force Edenville to expand the capacity of its spillways so it could survive a major flood.
The transfer left the state to play catch up on a case that had been in the federal domain for decades.
"The state has only had authority over the dam for a year and a half," said Nick Assendelft, a spokesman for the Department of Environment Great Lakes and Energy.
"Having not had a previous regulatory role we started from Ground Zero in our assessment of various aspects of the dam’s condition and capacity."
Federal records show several violations and consistent concerns eventually led to the revocation of the dam’s license under the premise that the dam could not withstand significant flooding.
The energy commission notified the dam’s previous owner as far back as 1999 that it needed to increase capacity in its spillways and alerted Boyce Hydro Power LLC to those concerns when the license transferred in 2004.
In 2012, the commission approved changes to the dam that would help Boyce Hydro to meet the 100% PMF standard, but the $8 million pricetag was more than the company could afford, the company said Wednesday. The commission rejected the company's alternative interim measures to increase spillway capacity.
By June 2017, the commission cracked down, citing the owner's "longstanding failure to address the project’s inadequate spillway capacity at this high hazard dam."
"Thirteen years after acquiring the license for the project, the licensee has still not increased spillway capacity, leaving the project in danger," wrote Jennifer Hill, director division of Hydropower Administration and Compliance. "The spillway capacity deficiencies must be remedied in order to protect life, limb and property."
The commission on Wednesday ordered Boyce Hydro to establish an independent investigation team to determine what caused water to overflow the Sanford Dam and said it would ask the state to require the same for Edenville dam.
Boyce Hydro itself in the April federal lawsuit against state regulators acknowledged that the federal government had voiced concerns from 1993 through 2018 about the Edenville dam’s unsafe condition, specifically “the risk of catastrophic erosion from overtopping due to inadequate spillway capacity."
The April 29 complaint defended an unauthorized drawdown of water from Wixom Lake, arguing it was a pre-emptive measure to protect dam workers and prevent against a breach that could endanger Sanford, Northwood University and the city of Midland.
“These risks have remained virtually the same before and after the effective date of the FERC license revocation for the Edenville Project,” Boyce Hydro said in the lawsuit.
Federal standards require that dams that could present a significant danger to life and property if they failed must be able to accommodate the largest predictable storm — known as the probable maximum flood — a requirement the Edenville Dam does not meet.
But the standard is lower under Michigan law, which requires high hazard dams to be designed to handle half that, or the equivalent of a 200-year flood. According to federal records, Edenville meets Michigan's capacity requirement.
Experts have said the flood Tuesday was the equivalent of a record-breaking 500-year flood.
According to a 2012 FEMA summary of state dam safety standards, roughly 80% of states at that time required dams to be capable of accommodating up to the full probable maximum event.
Michigan was among a minority of states that required their dams to be able to meet a fraction of that standard.
Although state regulators could not immediately provide evidence of it, a state spokesman said regulators expressed “strong concerns that the dam did not have enough spillway capacity" to Boyce Hydro's consultants at the time of its 2018 inspection.
The concerns were not expressed in the state's report detailing the Oct. 4, 2018 inspection that found the dam's spillways had signs of "moderate deterioration," but "appeared to be stable and functioning normally."
"There were no observed deficiencies that would be expected to cause immediate failure of the dam," the report said.
The failure of the Edenville Dam and the breach of the Sanford Dam came as Midland and Gladwin counties were in the midst of purchasing those dams and the Smallwood and Secord dams from Boyce Hydro.
Four Lakes Task Force had signed a $9.4 million purchase agreement for the dams last year and expected to finalize the sale in the coming months on behalf of the counties, said Stacy Trapani, a spokeswoman for the task force. The cost of improving the dams was expected to be $100 million.
Trapani was uncertain whether or not the deal would go forward in light of Tuesday's disaster.
Boyce Hydro owns four dams on the Tittabawassee River: Edenville, Sanford, Smallwood and Secord. The dams create Wixom, Sanford, Secord and Smallwood lakes.
The dams at one time were relatively profitable generators of hydroelectric power, Trapani said, but as the value of the dams started to wane Boyce Hydro was unable to keep up with repairs.
When the federal government revoked the power generation license for the Edenville Dam in 2018, the Four Lakes Task Force was created to take action. The group had received a grant from the state to pay for some repairs and had been working to establish a special assessment district for long-term maintenance, Trapani said.
“What they’re working toward is to ensure the dams are safe, operational and sustainable in the long-term,” she said.
Consumers Energy held power purchase agreements for power generated from all four dams, but the one for Edenville ended with the federal revocation of its power generation license, said Katie Carey, a spokeswoman for Consumers.
In recent weeks, the tension between the state and Mueller mounted as both filed countersuits in state and federal courts over a drawdown of water that the state said was unauthorized and killed mussels in Wixom Lake.
Attorney General Dana Nessel filed suit against Mueller in Ingham County Circuit Court seeking more than $25,000 fines and fees to compensate for the death of thousands of freshwater mussels that occurred when the company “dramatically lowered the level of Wixom Lake for an extended period in 2018 and 2019” via the Edenville Dam without authorization.
Mueller, the suit said, lowered Wixom Lake by 8 feet by opening the gates of the Edenville dam between September 2018 and spring 2019 without authorization from EGLE or the DNR. The drawdown was much larger than the usual 3 feet allowed by federal regulators during the winter and exposed bottomlands that resulted in the “death of thousands, if not millions, of freshwater mussels.”
Nessel’s suit was preceded by a federal suit filed by Mueller on April 29, arguing the state had no “validated scientific or other technical evidence” showing Mueller’s actions directly contributed to the mussels’ deaths.
Mueller argued the $261 million to $412 million lawsuit the state planned to file violated his constitutional liberty and property rights through the “arbitrary, capricious and ‘shock-the-conscience’ conduct" of state officials.
The company began to draw down water while still under federal jurisdiction then continued to do so after to maintain levels over the winter that were safe for workers and protected residents downstream, the lawsuit said. The company monitored mussel exposure during that time, according to the lawsuit.
“Boyce acted as a matter of prudent risk management and best practice in preparing for the real possibility that harsh winter weather conditions, like those it experienced in 2017, would again beset the Edenville Dam site in 2018,” the lawsuit said.
The drawdowns were taken to protect folks downstream, the company said Wednesday, but opposed by the attorney general on behalf of mussel habitats and eventually stopped completely by the state in April.
The April push to raise those levels was made despite the state knowing of the dam's "inability to meet even 50% of the PMF standard," the company said in a statement.
At the time FERC first revoked its power-generating license, Boyce Hydro and the Sanford Lake Association appealed, arguing that the move would do nothing to ensure the dam's safety.
In denying their request for a rehearing, FERC responded: "Michigan DEQ has extensive dam safety regulations, including enforcement mechanisms such as the ability to commence a civil action for appropriate relief for violations."
It made no mention of the state's differing standards or the risk they might pose.