Neighbors of Edenville Dam don’t want state investigating its failure

A group of property owners hoping to buy a troubled system of mid-Michigan dams is the latest to call for an independent investigation into the May 19 failure of two of them.

Dave Kepler, president of the Four Lakes Task Force, announced Tuesday his group wants independent investigators to review the disaster, which caused massive flooding and some $200 million in damages to more than 2,500 buildings in Midland, Gladwin and Saginaw counties.

The Four Lakes Task Force, which has an agreement to buy the dams, echoed concerns from a host of others who contend it’s a conflict for Michigan regulators to lead an investigation into the dams’ failure.

“We need to do this thing right and we need to make sure we get it right [so] there's no cloud over it once it's done,” said Kepler, whose group represents thousands of property owners along Smallwood, Secord, Sanford and Wixom lakes.

“We take the results and we move forward. We can't spend a year having an investigation that doesn't come out [where] people are very confident.”

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The demand came several hours before Michigan Attorney General Dana Nessel announced a lawsuit against the dam’s owner, Boyce Hydro Power LLC, alleging it is responsible for the dams’ failures and demanding it pay for costs related to the dam break.

To those “who own private infrastructure, we must tell them this: If you choose to place your own interests above the safety of the public, then you will be held accountable to the fullest extent of the law,” Nessel told reporters on Tuesday.

The lawsuit follows several class-action lawsuits from residents against the state and Boyce — as well as finger-pointing over the tragedy.

Michigan officials have claimed they were waiting for reports proving the largest of the dams, the Edenville Dam, was unsafe when it failed amid heavy rains.

But in a statement Tuesday, the homeowner group called for an independent investigation into the tragedy because the state is “creating [its] own narrative on the blame for the Edenville Dam’s failure.”

The group claimed state regulators were “aware of the deficiencies associated with Edenville Dam” in September 2019, four months before they had previously acknowledged.

The homeowner group also said the state has misstated that it couldn’t demand improvements from Boyce sooner because it didn’t have access to federal reports or a consultant’s study into the safety of the Edenville Dam whose failure sparked the flooding.

In fact, the task force offered to provide the consultant’s study to the state but was rebuffed by regulators, Kepler said. 

Hugh McDiarmid, spokesperson for the state Department of Environment, Great Lakes and Energy, declined to respond specifically to the accusations, citing pending legal action. A court filing issued Tuesday indicates the agency received the report on June 4.

“EGLE recognizes the Four Lakes Task Force’s desire to understand the longstanding dam safety concerns that were unaddressed for years by Boyce Hydro,” McDiarmid told Bridge via email. 

“EGLE is focused on moving forward with facilitating an investigation into all potential causes of the catastrophe. This will also include a review of Michigan’s dam safety requirements and procedures.”

In its statement, the task force said the state approached members saying it “would be a good idea to come to agreement on a set of stipulated facts.”

The group wants the Association of State Dam Safety Officials to lead the probe, echoing concerns from safety experts that said EGLE’s investigation is an obvious conflict that puts the state in the position of investigating itself. 

On Monday, Gov. Gretchen Whitmer defended her decision to have the EGLE lead the probe. Its regulators oversaw the largest of the dams, Edenville, since fall 2018 and demanded no major changes, even though federal regulators had terminated its license to generate electricity over safety concerns.

But Whitmer, in Midland County on Monday, said the department is best suited to lead the probe because it’s “going to take a certain level of expertise” to determine what caused the dam failure.

She said the agency will work with “some independent investigators” as well, but declined to identify them, saying “that’s all getting fleshed out right now.”

The Four Lakes Task Force signed a purchase agreement in December 2019 to acquire the dams. Kepler said the repairs to the dams, gates, spillways and other structures were going to reach $20 million.

But that was before heavy rains overloaded the lakes, causing the Edenville Dam to fail, with the water triggering the failure of the Sanford dam. 

The purchase agreement is currently off, he said.

For over two decades the Federal Energy Regulatory Commission had prodded the dam’s owner Boyce Hydro Power LLC and prior owners to expand flood capacity at the Edenville Dam. 

The September 2018 revocation of Boyce’s license shifted oversight to Michigan, whose dam safety standards are half as stringent as those of the federal government.

A state inspection of the dam in 2018 deemed it in fair condition. 

Michigan officials have claimed they couldn’t see FERC’s detailed safety reports because they were shielded by laws that protect the release of sensitive information regarding “critical infrastructure” like dams.

EGLE Director Liesl Clark told Bridge Tuesday that the two-person dam safety inspection team had to reconstruct the safety analyses and “has worked with anything that FERC has been able to give to us,” though some of it was kept confidential by law.

The homeowner group had the reports because it was conducting due diligence on its purchase of the dams, but the state did not want to see them, the task force asserted in its Tuesday timeline.

“FERC and the state need to step back and allow this investigation to be truly independent, especially since the [state] and Boyce Hydro, in the rush to sue each other, are creating a narrative without exercising diligence for the truth,” the statement from the task force read.