Gov. Gretchen Whitmer launches investigation into Midland dam failures

Michigan Gov. Gretchen Whitmer on Wednesday formally announced a state investigation into two Midland-area dams whose failure amid heavy rains last week caused flooding of the Tittabawassee River that forced evacuations of more than 10,000 people. 

The investigation will explore the structural integrity of the Edenville Dam, its owner’s compliance and the regulatory handoff from the federal government to the state. Federal regulators flagged the dam for safety problems for more than three decades before the flood.

The Sanford Dam also failed, and investigators will be asked to provide recommendations on policies that can help prevent similar problems. 

• Related: Two heirs bought Midland dams as a tax shelter. Tragedy followed.

“Those responsible need to be held accountable,” Whitmer said. “As residents begin the painstaking work of picking up the pieces of their lives from this disaster, they deserve to know why these dams failed, why they've been uprooted, uprooting businesses and lives as well.”

The investigation comes after Bridge Magazine first reported the largest of the dams, the Edenville Dam, was cited for noncompliance with federal regulations for years before its license to generate power was terminated in 2018.

That shifted oversight of that dam to state regulators, whose initial review deemed the dam in fair condition. 

Whitmer asked the state Department of Environment, Great Lakes, and Energy for a preliminary account of what caused the failure of the dams by the end of August.

The state hadn’t demanded structural changes to the Edenville Dam in the year and a half since it came under their purview, but it recently sued dam owners Boyce Hydro Power LLC over lowering lake levels and endangering a rare species of freshwater mussels. 

• Related: Feds revoked dam’s license over safety issues. Then Michigan deemed it safe.
• Related: Michigan regulators moved fast on dangerous dam. To protect mussels.
• Related: Michigan GOP calls for Nessel to step down from investigation into dam failure

A spokesperson for EGLE told Bridge it was waiting on a study expected in late March that would allow them to enforce dam improvements. 

Boyce also owned the Sanford Dam, which also failed during last week’s rains.

EGLE will be responsible for leading the investigation into the failures, including its own regulatory duties, which has sparked complaints of a potential conflict of interest. 

Speaker of the House Lee Chatfield, R-Levering, wrote on Twitter Wednesday evening that there are “too many unanswered questions about EGLE's involvement in the dam collapse for them to manage this investigation."

“We need to make sure the fox isn't guarding the hen house,” he wrote. “Local residents have real concerns. They deserve an independent investigation they can trust.”

There are too many unanswered questions about EGLE's involvement in the dam collapse for them to manage this investigation. We need to make sure the fox isn't guarding the hen house. Local residents have real concerns. They deserve an independent investigation they can trust.

— Lee Chatfield (@LeeChatfield) May 27, 2020

“The regional EGLE or DEQ is much responsible for part of this,” Sen. Jim Stamas, R-Midland, told Bridge Wednesday. 

There does need to be an investigation, Stamas said, but the agency isn’t the right one to do it because they “created some delays [in upgrading the dams] and that was part of my frustration.”

Others, including attorneys for Midland-area residents who are suing the state over the damage done to their property in the flood, echoed his concerns. 

Whitmer said she chose EGLE to lead the investigation because she wanted to follow “the procedure that would ordinarily be followed,” she told reporters Wednesday. 

“We have to go to the agency that has the expertise,” Whitmer said in response to a question as to why she didn’t choose a third-party investigator. “I understand the nature of your question and can see the usual wisdom that might come with that but there are very few that have the kind of expertise that is really needed to be able to properly do this investigation.”

National experts, however, backed up critics of the state's response. Independent investigations are a cornerstone of dam failure response, according to national guidelines published by the Association of State Dam Safety Officials, a group that advocates for dam safety.

The guidelines outline appropriate actions dam safety officials should take in the wake of a dam disaster. One of the chief components of a sound investigation, according to the guidelines: 

“There is a clear need to establish and maintain independence of the investigation team members. Investigations have been seriously derailed due to public concerns that the investigation members (or their home organizations) had a stake in the outcome of the investigation.”

After the Spencer Dam in Nebraska failed last year, the state’s officials asked the national dam safety association to perform the investigation, with complete autonomy from the dam owner and state regulators. 

Mark Ogden, a technical specialist with the national group, said such independence is a vital component of post-disaster response. It’s not just about ensuring the investigators are well-equipped to carry out the post-mortem, Ogden said. It also “lends credence to the findings and the results."

Michigan Republicans have also called for Attorney General Dana Nessel to step down from any investigation into the dam failure, citing Bridge’s reporting on the lawsuits against the dam owner for alleged illegal lake drawdowns. 

Bridge has reported that Boyce Hydro, the company that owns the Edenville and Sanford Dams, ignored federal requirements to improve the Edenville dam’s ability to withstand heavy flooding, arguing it didn’t have the money necessary to make safety improvements to the dam. 

“There are a lot of problems with the owner of this particular dam,” Whitmer acknowledged at the Wednesday news conference. 

But long-term underinvestment infrastructure, the high level of precipitation and lack of a full ground freeze this year may have also contributed to the dam’s failure, she said. 

“It would be irresponsible to tell you that anyone knows precisely the full story here, and that’s why this investigation’s important.”

Kelly House contributed to this report.