A Sanford couple is taking on the federal government in general and FERC (Federal Electricity Regulatory Commission) in particular after they lost their lakefront home in May when the Sanford Dam was overwhelmed, causing major flooding. This is interesting since at the root of the dam disaster is the failure of FERC. For years, FERC kept humouring the dam owner, and tolerated its violations. Why it did that, when it could have taken much stronger action almost two decades back is a mystery. Hopefully, this case will help get it resolved.
Dan Allen, 64, and Cathy Allen, 62, filed a Federal Tort Claims Act (FTCA) claim on July 23, 2020, seeking $1.25 million in damages against the federal body that previously oversaw the operation of the Edenville Dam. The Edenville Dam failed on May 19, 2020. That caused the Sanford Dam to become overwhelmed and resulted in massive flooding in the area. The Federal Energy Resources Commission (FERC) issued dam owner Boyce Hydro a license in 2007, despite the dam already not being in compliance with federal regulations.
The claim alleges that because the FERC issued the Edenville Dam a license without first ensuring that it could afford to make the needed repairs, it is responsible for its failure: “The collapse of the Edenville Dam on May 19, 2020 was the direct result of FERC’s failure to comply with the legal mandate to grant a license to a financially sound and competent operator who would operate a High Hazard Dam safely. If FERC had followed its mandate, the disaster would not have occurred because Boyce would not have been granted a license,” the lawsuit filing reads. The FERC has 6 months to either grant or deny the claim. If it denies the claim or does nothing, the Allens can sue in federal district court.
Midland County officials have estimated that the total damage from the flooding is upwards of $209 million. More than 2,500 homes and businesses were damaged. About 150 were completely destroyed. Few properties had flooding insurance and many weren’t located in a flood plain.
This is essentially an update on the Michigan Dams disaster of May 2020, about which we wrote this article on May 25, 2020, soon after the disaster. Below we have compiled other updates related to this disaster.
OTHER UPDATES ON MICHIGAN DAM DISASTER OF MAY 2020:
1. May 26, 2020: Michigan Dam Safety Unit has three persons: Two engineers and their boss. “Midland’s flood disaster shines a spotlight on the aging, crumbling condition of dams in Michigan, and the limited financial ability — or will — and enforcement teeth to do anything about it… Michigan has more than 2,500 dams, ranging from small berms making tiny ponds at hunting cabins Up North to larger hydro-dams like the Edenville and Sanford dams… Some 1,061 of Michigan’s dams are regulated by the state — many because they are over 6 feet in height and hold back 5 acres of water or more; some because of circuit court orders establishing lake levels. Another 99 Michigan dams that generate hydropower are managed by the Federal Energy Regulatory Commission… “The key issue here is enforcement,” said Jim Hegarty, past president of the Michigan Section of the American Society of Civil Engineers. He authored a 2009 Report Card on Michigan’s dams, giving them an overall D grade. “We don’t have a problem with knowledge, necessarily; we don’t usually get surprised by this stuff. We need better enforcement on serious potential situations.”
The Report Card for Michigan’s dams was updated by ASCE for 2018. While the grade improved to a C-minus because of a number of poor dams being removed across Michigan since 2009, the report noted two-thirds of the state’s dams still were older than their typical 50-year design life. “In the next five years, about 80% of Michigan’s dams will be over 50 years old”.
“Michigan’s dam safety staffing is lower than the national average, said Mark Ogden, a technical consultant with the Association of State Dam Safety Officials, a Lexington, Kentucky-based nonprofit representing state regulators, dam owners and engineers… Michigan also spends less than most other states on dam safety, according to the association. The average U.S. state spends about $695 per dam in safety regulation; Michigan spends about $374 per dam… About 70% of Michigan’s dams, more than 1,750 of them, are privately owned — “one owner, or a lake association, or a few homeowners,” he said.”
2. May 26 2020 “Why did the dam continue to operate even though it was out of compliance with flood prevention standards? … An exchange in 2011 between Boyce and Sanford lakeshore residents sheds light on why these safety risks were never resolved. The owner of Boyce, Lee Mueller requested the lakeshore property owners pay the $83,000 needed to repair the dam structure and to return the lake to its normal level. Lakeshore residents argued instead that Boyce pay for the repair since the company made revenues from the hydroelectric power generated from the dam. In response, Mueller threatened to drain the lake permanently if the property owners refused to pay up. Boyce was counting on Midland County to intervene since the county would lose millions in property tax revenue if residents were forced to move away after the lake was drained. This episode reveals the utter lack of concern about the imminent danger of flooding caused by Michigan’s aging dams. Only profits entered into the calculations of Boyce and the local county officials… what happened to the Edenville dam after September 2018 when Boyce’s license was revoked by the FERC? Why was nothing done to repair and maintain the dam which would have prevented last week’s catastrophe from happening? … Submitted on the same day was another similar but lengthier letter from heads of local lake associations, including David Kepler, president of the Sanford Lake Preservation Association. Kepler was a major figure at Dow Chemical for 40 years, where he was the Executive Vice President, Chief Sustainability Officer and Chief Information Officer, and previously was part of the US National Infrastructure Advisory Council on infrastructure and homeland security under President George W. Bush… What’s behind the collapse of the Edenville dam and the damage of thousands of homes is the decades-long bipartisan neglect of the safety issues regarding dams on both the state and federal levels…. According to a study published by the Yale School of Forestry & Environmental Studies, on average, each state inspector is responsible for about 200 dams. In Oklahoma and Iowa, there were only three inspectors for their 4621 and 3911 dams respectively. There is also a nationwide lack of emergency responses to the high hazard dams. Alabama does not have a dam safety program, while no emergency action plans exist for 20 percent of the high hazard dams…. From the same study, the total estimated cost to repair all the high hazard dams is about $45 billion, and about $71 billion to repair all dams in the country—only a minor fraction of the trillions of dollars used on military expenses and the bailout of Wall Street during the pandemic. The collapse of the Edenville dam is not a natural disaster, but a man-made one, a result of decades of attacks on critical infrastructure.”
3. At least three different proposed class action lawsuits have been filed in state and federal courts on behalf of residents and business that are claiming losses that resulted from the dam failure.
4. In a letter addressed to Lee Mueller, Boyce Hydro Power LLC managing member, on May 20, the Federal Energy Regulatory Commission (FERC) ordered Boyce Hydro to fully lower the reservoirs behind Sanford Dam, Smallwood Dam and Secord Dam — all dams under FERC jurisdiction — in a safe manner as flows recede. Boyce Hydro is also being directed to perform a safety inspection of the dams within three days after the flows recede. After the completion of the inspections, Boyce Hydro must provide a copy of the reports to FERC within three days, but must also provide a verbal summary of findings to the Chicago Regional Engineer immediately upon completion. “Boyce must also maintain fully lowered reservoirs and develop an interim plan to safely pass flows until a safe reservoir elevation can be established and implemented,” the letter states. The letter also directed Boyce Hydro to immediately begin formation of a fully-independent forensic investigation team to focus on the three dams. The team must consist of dam safety experts “well versed” in the following disciplines: hydraulics and hydrology; geotechnical engineering; structural engineering; reservoir operations; emergency action planning; organizational/human factors. The team members must not have worked on any of the Boyce Hydro Projects in the past.
In a press release on Tuesday (May 26), the Four Lakes Task Force (FLTF) announced the its acquisition of the lake-system and its dams will not take place under the terms that were negotiated with Boyce Hydro this past winter. In December 2019, Four Lakes Task Force signed a $9.4 million purchase agreement to acquire Wixom, Sanford, Secord and Smallwood lakes, along with their dams from Boyce Trusts. The sale was expected to close in January 2022.
5. Speaking in Midland on Wednesday, Gov. Gretchen Whitmer, said she has sent a letter to EGLE directing the department to investigate what caused the Edenville and Sanford dams to fail. Fielding a question from a reporter about whether the flooding could have been avoided, and if it was a mistake to tell the dam owners to raise the water level, Whitmer said it is important that EGLE’s investigation be done. [It has detailed information about the suit filed by state against unauthorised lowering of reservoir level in 2018 and 2019 winters.}
6. May 27, 2020 Bruce Feinberg has noted the similarity with the failure of the Kelly Barnes Dam on 6 November 1977 at Toccoa in Georgia, USA. This was another earthen dam that breached during heavy rainfall, killing 39 people. The USGS investigated this failure, and the report is online. The report makes shocking reading – the dam was poorly documented and in a very poor state of repair at the time of failure. Photographs from 1973 show that a slope failure in the face of the dam had already occurred. The USGS report hypothesises that the breach may have been caused by a further slope failure in the downstream face of the dam:
[Slope failure] appears to be a distinct possibility, particularly on the downstream slope when the previous slope failure is considered along with the possibility of the development of tension cracks upslope of the previous failure together with a computed factor of safety that is marginal. The long period of rain would have saturated tension cracks, if they existed, and the entire downstream slope would have become essentially saturated and even more susceptible to failure. A local downstream slope failure similar to that observed in 1973 could have caused limited breaching allowing localized overtopping. This concept would corroborate the hydraulic computations.
This proposed mechanism of failure is indeed similar to that of the Edenville Dam.
7. May 29, 2020 In a letter from the Federal Energy Regulatory Commission dated Thursday, an official wrote that “initial observations” found “erosion of the downstream slopes” at Secord Dam, which is upstream from two dams that were breached, causing widespread damage and prompting the evacuation of more than 10,000 residents. John Zygaj, a FERC regional engineer, mentioned the Secord’s condition in his letter while directing Boyce Hydro’s Lee Mueller to file an incident report by June 16. z
– The Smallwood Dam was damaged even though Boyce Hydro officials indicated to the FERC it had no “consequential” harm, according to the federal agency that oversees the dam. On May 20, the FERC ordered Mueller, who is based in Las Vegas, do an inspection of the Sanford, Smallwood and Secord dams three days after the water receded. It’s not clear the status of that inspection.
8. Gov. Gretchen Whitmer earlier this week directed the state of Michigan to investigate what caused two Midland County dams to fail and to review dam safety throughout the state. Now, some legislators are calling for an independent investigation into the matter. State Rep. Roger Hauck, a Republican from Union Township near Mount Pleasant, on Friday, May 29, joined some of his colleagues in calling on Whitmer to hire an independent investigator to look into the failed dams, rather than the Michigan Department of Environment, Great Lakes, and Energy (EGLE). “For the water crisis in Flint, independent investigators were hired to examine the catastrophe, as we did not trust the state Department of Environmental Quality to investigate its own mismanagement of the crisis,” Hauck said in a statement. “The disaster involving the Edenville and Sanford dams warrants the same method — the people of Midland County and the surrounding area deserve a fair investigation.”
9. Safety experts who we spoke to say the state should have moved faster to protect the public against a dam with a 25-year history of noncompliance and safety warnings. (How weak regulations failed to prevent catastrophe at notorious Midland dam) “When there’s public safety at stake, you don’t have conversations. You actually do something about it,” said Hiba Baroud, a professor of civil and environmental engineering at Vanderbilt University who specializes in risk analysis of infrastructure.
– “Factor in wave run up/set up, and the deficiency increases significantly,” Trumble wrote. “No big surprise there, but I wanted to have the calcs to support that assumption before EGLE makes a final determination on hydraulic adequacy of the dam.”
That finding, coupled with years of federal reports, should have compelled the state regulators to take temporary action to protect public safety until a permanent solution could be reached, said Baroud. She said operating the dam at a lower lake level could “allow for these extreme [rain] situations to occur without resulting in a disaster.”
“You have to prioritize public safety,” Baroud said. “You have to take action, not wait, or have conversations about it. Just take action.”
In a letter sent Thursday to Boyce Hydro a regional engineer with FERC noted that “initial observations noted significant flood erosion damage of Smallwood Dam and some erosion of the downstream slopes of Secord Dam.”
FERC officials have directed Boyce to submit an incident report by June 16 detailing recent operating conditions at the Secord, Smallwood and Sanford dams.
10. June 1, 2020 A congressional committee has asked the Michigan Department of Environment, Great Lakes and Energy for additional information on the Edenville Dam, which broke May 19, flooding the Midland area and forcing the evacuation of more than 10,000 people.
The U.S. House Committee on Energy and Commerce asked in a Friday letter for more details about what actions Michigan took or didn’t take to secure the Edenville Dam after jurisdiction was shifted to the state from the federal government in 2018. It asks about the state’s evaluation of the dam in the past two years and any regulatory or legal action taken in recent months against the dam owner Boyce Hydro. Federal lawmakers sent a similar letter to the Federal Energy Regulatory Commission to discern its actions surrounding the dam prior to 2018.
Among the questions asked of Clark in the letter are ones pertaining to state communication with federal authorities about the dam; the state’s perceived obligations in relation to the dam; any legal and regulatory efforts the state took since 2018; and what action was taken after the state found in January that the dam didn’t meet flood capacity standards.
11. (This post is a highly abridged version of a more in-depth report on the events that led to the failure of the Edenville Dam. Watch the Mackinac Center website for more details on this soon-to-be-published report.) The Edenville Dam has survived heavier rains in the past. But on May 19, rising water levels in the Tittabawassee River and Wixom Lake scoured out a section of the dam, which then washed downriver and over the Sanford Dam. Boyce Hydro claims it acted quickly on May 15, ahead of the storm, to once again begin drawing down lake levels. But clearly, it was unable to draw water levels down sufficiently to hold the flood waters back. [Does this article represent the interests of the Boyce Hydro?]
12. Sanford Lake residents now face yet another threat: erosion. On June 4 2020, the Federal Energy Regulatory Commission ordered the owner of the dams to stabilize the shorelines to prevent erosion that could endanger homes. FERC told Boyce to hire engineers to study erosion along Sanford Lake that had created a “steep bank.” FERC said Boyce must pay for stabilizing the shoreline near “any residences or structures that are in jeopardy of additional damage.” FERC also said the loss of the lake, replaced with a far-faster moving river, could lead to even more erosion, especially if there is more rain.
13. Gov. Gretchen Whitmer announced Monday she’s seeking a federal major disaster declaration from President Donald Trump to help recoup some $200 million in damages to more than 2,500 buildings from floods last month caused when two dams failed. only 8 percent of damaged homes had flood insurance, 150 homes were destroyed, 790 had major damage and public property such as schools and government buildings had $34 million in damages.
14. June 9, 2020 Saying the owner and operator of the failed Edenville Dam “repeatedly put its own profits over the safety of the public,” Michigan Attorney General Dana Nessel on Tuesday announced a new state lawsuit against Boyce Hydro LLC, seeking likely millions of dollars in damages and response and recovery expenses related to last month’s flooding in Midland County.
– The state’s new lawsuit, filed Tuesday in Ingham County Circuit Court, urges the court to order Boyce Hydro to take immediate steps to shore up the remaining portions of the Edenville Dam on the Tobacco River side of the structure. The dam’s breach has changed the flows of the Tobacco and put strain on the remaining dam portion still holding back a significant amount of water, state officials contend. “Cracks had begun to form on the downstream slope west of the Tobacco spillway and, based on observations from (Boyce’s) chief operator Greg Uhl, the cracks were very deep and approximately 60 feet wide,” the state’s lawsuit complaint states.
– EGLE issued an emergency inspection order May 22, requiring Boyce to secure an engineer to perform an immediate evaluation of the Tobacco side of the dam and report back to the state within two days. The order also required Boyce to have an engineer perform a full inspection of the remaining portions of the entire dam and make recommendations for repairing any deficiencies “that pose a risk of safety to the remaining dam structure.” The lawsuit states Mueller told EGLE officials June 2 that an inspection of the Tobacco side of the Edenville dam would begin “during the week of June 8,” and that a report would be forwarded to EGLE “at some point in the future.” On June 5, Mueller told EGLE Boyce was “monitoring the cracks on the Tobacco side of the dam.” State officials state in their lawsuit complaint.”If the Tobacco side of the Edenville Dam fails, there could be additional, catastrophic impacts to the people, property and natural resources downstream from the dam in addition to the complete loss of the M-30 (highway) crossing.” The state’s lawsuit also seeks to have Boyce repair damages to the state’s natural resources, clean up discharges of debris and hazardous materials caused by the dam’s failures, and pay civil fines and damages related to the disaster.
15. June 10, 2020 For the first time since the Edenville Dam broke two and a half weeks ago, the Department of Environment, Great Lakes and Energy spoke with legislators on what went wrong to lead to the failure and what problems hang on the horizon. It was the first of many scheduled hearings where EGLE explained why the Edenville Dam was rated poorly and yet nothing had been done to avoid catastrophe before it hit. Much of it came down to a lack of resources and man power but many questions still went unanswered during the hearing.
16. June 15, 2020 A federal judge on June 15, 2020 instructed the owners of the failed Edenville Dam to perform an immediate inspection of the structure to determine if it poses a substantial risk to folks downstream of the remaining Tobacco River segment. U.S. District Judge Paul Maloney ordered the immediate inspection after the state alleged the dam company was “slow-walking” the inspection to the detriment of residents who could be harmed by a second breach in the dam.
17. June 18, 2020 Michigan and federal regulators have signed off on six independent experts who will investigate why mid-Michigan’s Edenville and Sanford dams failed in mid-May. The team, which held its first virtual meeting June 17, 2020, will be paid and contracted by dam owner Boyce Hydro, but were screened and approved by the Federal Energy Regulatory Commission and the state Department of Environment, Great Lakes and Energy. The investigation is expected to take 18 months to complete, but the group could issue preliminary reports if there are discoveries that may help the state to mitigate potential failures at other dams, the state environmental department said in a Thursday (June 18) statement.
-John W. France, president of JWF Consulting and expert in engineering consulting and design, will lead the team. Other members include dam engineering expert Irfan A. Alvi, hydromechanics expert Henry T. Falvey, hydraulics structure engineer Steve Higinbotham, water resources expert Arthur C. Miller and geotechnical engineer Jennifer Williams.
18. June 19 2020 A statement from republican party representative from Michigan says that the investigation team is not acceptable as it is not independent team, it has been chosen by the dam owner and also state govt, both of which are charged in cases filed in the court.
19. June 29 2020 Rising water levels in Wixom Lake washed away a 900-foot section of the earthen embankment, and water flowed downriver, swelling Sanford Lake and washing over Sanford Dam.
20. July 5, 2020 Michigan and federal officials have prioritized dam removal over dam repairs in their funding decisions, experts say, a trend a Republican state lawmaker argues is an “appalling” practice that values fishing concerns over public safety. Nearly 80% of Michigan’s $16.95 million in dam management grants awarded since 2012 have gone to dam removal projects, state officials testified in mid-June. Funding for dam removal largely is prioritized over dam repair because that’s the way the statutory language was written for the state’s available grant programs, said Jessica Mistak, habitat management unit supervisor for the Michigan Department of Natural Resources Fisheries Division.
– Less than a year before the Edinville dam broke, the state Department of Natural Resources rejected a $1.6 million grant request for the dam’s repair. The proposal was turned down 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.
– Across the nation, as environmental awareness grew and liability issues with dams came to the forefront, removal became a more viable option than repairs in the eyes of regulators and owners alike, said Mark Ogden, a former Ohio dam safety official who is now a technical specialist with the Association of State Dam Safety Officials. “I do think that more regulatory agencies over the years have presented that option to the dam owners than years ago when dam building was more of the norm,” he said.
21. Earlier (May 20, 2018) report shows that Michigan is the most freshwater rich state of US, it sits on a fifth of the World’s freshwater source (Great Lakes), but charges giant multinationals like Nestle a pittance for its use of water.
– Public outrage is still simmering, partly because the private company pays relatively little in exchange for its ability to profit off what many Michiganders see as a public resource. Michigan should either collect taxes on companies like Nestle that use water or significantly raise the fees water bottlers must pay.
– Nestle pays Michigan a pittance in exchange for the 4.8 million bottles of water a day the multinational company bottles at its Ice Mountain factory there: a US$200 annual permitting fee for each of their groundwater wells. Michigan does not tax bottled water production. State Rep. Peter Lucido, a Republican, has introduced a bill that would charge Nestle and its competitors like Absopure, Coca-Cola and Pepsi a 5-cents-per-gallon tax on the water they harvest. Lucido estimates that Nestle would have to pay $20 million in taxes if his legislation were to become law. The lawmaker is calling for the state to spend this new revenue on water infrastructure, a long-neglected spending priority, as the Flint water crisis illustrates.
22. July 9 2020 President Donald Trump approved Thursday (July 9 2020) a major disaster declaration request by the state of Michigan that opens federal individual and public aid following May flooding in five mid-Michigan counties. Gov. Gretchen Whitmer requested a major disaster declaration from Trump for $245 million in damage widespread flooding caused in five Michigan counties. The damage done in Midland, Gladwin, Arenac, Iosco and Saginaw counties amounted to roughly $190 million in losses for residents and $55 million in damage to public infrastructure, according to the 50-page request Whitmer sent to the Trump administration in mid-June.
– Approval provides more federal assistance through the Federal Emergency Management Agency, the Small Business Administration and the U.S. Department of Agriculture’s Office of Rural Development for individuals and companies seeking relief because of flood damage. “At the request of Congressman Moolenaar, I have approved a major Disaster Declaration to provide more than $43 million in Federal Funds to help the people of the GREAT State of Michigan recover from the recent dam break flooding,” Trump tweeted Thursday evening. “I will always stand with Michigan!
23. July 21, 2020 Throughout June 2020, a number of legislative proposals poised to impact hydropower resources have been introduced in Congress. On Monday, June 22, Democratic members of the House of Representatives released H.R. 2, the Moving Forward Act, which aims to encourage investment in infrastructure and includes several provisions on hydropower and dam safety. On Monday June 29, Congresswoman Cathy McMorris Rodgers (WA-05) introduced the Hydropower Clean Energy Future Act which includes updates to the licensing process for non-federal hydroelectric projects and promotes innovation of new generation technologies that would protect the environment and natural resources while providing additional reliability services to the nation’s electric grid. Finally, on June 30, Democratic members of the House Select Committee on the Climate Crisis released a Climate Crisis Action Plan, which includes provisions on hydropower and marine energy facilities.