Feds revoked failed Edenville dam's license in 2018 over inability to handle big floods

May 21--Federal regulators in 2018 revoked the hydropower generating license for the collapsed Edenville Dam in Midland and Gladwin counties, citing years of failure by the dam's owners to address safety problems -- especially the dam's ability to withstand a major flood.

The 96-year-old Edenville Dam ruptured Tuesday after heavy rains, causing major flooding throughout portions of Midland County, forcing the evacuation of thousands.

"This order revokes the license for the 4.8-megawatt Edenville Project," the Federal Energy Regulatory Commission (FERC) wrote on Sept. 10, 2018.

"We take this action because of Boyce Hydro Power, LLC's longstanding failure to increase the project's spillway capacity to safely pass flood flows, as well as its failure to comply with its license, the Commission's regulations, and a June 15, 2017, Compliance Order."

With its power permit revoked, the Edenville Dam's regulation fell to the Michigan Department of Environment, Great Lakes and Energy. However, an EGLE inspection of the dam in October 2018 found it in "fair" condition, despite FERC's alarming findings only about a month earlier.

Despite record-high water levels across Michigan, and with years in a row of heavy spring rains, EGLE on April 9 approved Wixom Lake, the reservoir created by the Edenville Dam, to raise its water levels by 8 feet, from its unusually large winter drawdown level to its "summer level." The elevation increase was completed May 3, and celebrated by nearby residents eager to put their boat hoists and docks in the water, Wixom Lake Association records show.

The Edenville Dam is a 6,600-foot earthen embankment up to 54.5 feet in height, spanning both the Tittabawassee and Tobacco rivers in Midland and Gladwin counties. The dam creates a 2,600-acre reservoir known as Wixom Lake, with a gross storage capacity of about 40,000 acre-feet of water and a 49-mile-long shoreline when full. An acre-foot of water is the amount of water it would take to cover an acre of land with 1 foot of water, or about 326,000 gallons.

The dam was equipped with two, 2.4-megawatt turbine generators and was licensed for hydropower generation in 1998. But inadequacies in the dam's safety design were identified by regulators not long after the project began operation.

"Commission staff has attempted to ensure the licensee corrected noncompliance issues at this project since Boyce Hydro's acquisition of the license in 2004 -- a period of over 14 years," FERC commissioners wrote in their September 2018 license revocation order.

The project contains two spillways, structures that work like pressure-release valves to control the release of flows from a dam or levee downstream. They are particularly vital in a flooding situation. But there were not enough of them on the Edenville Dam for the dam's safety, FERC regulators found.

"Of particular concern is the project's inability to pass the Probable Maximum Flood due to inadequate spillway capacity," FERC officials wrote in a 2017 order.

A Probable Maximum Flood, or PMF, is the flood that can be expected from "the most severe" rainfall and hydrological conditions "reasonably possible" in a particular drainage basin. The National Weather Service described the situation in Midland County as "record flooding" on Tuesday. Gov. Gretchen Whitmer said at a news conference Wednesday outside Midland High School that experts have called it a "500 year flood."

FERC's dam safety guidelines require a dam be designed to withstand "overtopping," when high water loads being held back by a dam spill over its top, or that it have spillways that can alleviate water levels "that would endanger the safety of the project works" and "constitute a hazard to downstream life or property."

"Currently, spillway capacity at the Edenville Project can only pass about 50 percent of the PMF," FERC wrote in its 2018 revocation order.

Lee Mueller is listed as Boyce's architect and co-member manager.

In an email Wednesday evening, Boyce Hydro Power officials said the modified spillway plans approved by FERC in 2012 for the Edenville Dam would have cost $8 million, "which Boyce did not have the ability to finance."

"Boyce sought funding help from the community, without success," company officials stated.

The company further detailed its disputes with state officials over lowered water levels in fall 2018 and 2019, "to ensure the safety of the dam and the operators under hazardous winter conditions." The state attorney general's office threatened to sue the company over accusations of killing freshwater mussels through the two winter drawdowns.

"The state agencies clearly care more about mussels living in the impoundment than they do about the people living downstream of the dams," Mueller is quoted as saying in the statement.

On April 29, Boyce filed a federal lawsuit against EGLE, the Michigan Department of Natural Resources and officials within the agencies, accusing them of multiple violations arising out of their regulation of Boyce's dams. Two days later, on May 1, the state Attorney General's Office, EGLE and the DNR filed their own lawsuit in Ingham County Circuit Court against Boyce, seeking damages over the freshwater mussel deaths.

Water passing through the Edenville Dam breach headed downstream to Midland County's Sanford Lake, where the Sanford Dam, also owned by Boyce Hydro LLC, was also feared near breaching. Water was overtopping the dam late Tuesday. Social media reports of failures at the Sanford and Smallwood dams could not be confirmed Wednesday.

The Four Lakes Task Force was created by Gladwin and Midland counties in 2018 to administer and oversee the maintenance and operations of the four Boyce dams and the four lakes they create -- Smallwood, Secord, Sanford and Wixom lakes. In January, the task force signed a $9.4-million purchase agreement to acquire the dams and lakes from Boyce Trusts. According to the task force's website, the title for the dams will be held in escrow and transferred no later than 2024, with Boyce or the task force to "perform the necessary repairs or upgrades on all dams by the end of 2023."

The task force is funded by a $350 special assessment on property owners along the lakes, with an $88 fee for nearby property owners off the lake, that will start beginning on winter 2021 tax bills. The task force wants to take over hydroelectric power generation at the dams, which would defray the costs passed on to property owners.

The Sanford Lake Association and Gladwin County Board of Commissioners attempted to appeal FERC's September 2018 revocation of Boyce's hydropower permit, their arguments including that the loss of power revenue took away the ability to fund needed dam repairs, and burdened potential new owners. The commission denied the appeal in January 2019.

FERC Chairman Neil Chatterjee, in a statement Wednesday, pledged to coordinate with state officials to understand what happened.

"FERC continues to follow the reports on the situation at the Edenville and Sanford Dams," he said. "Our primary concern is the safety of Michigan residents, and we urge them all to continue heeding evacuation guidance by local emergency management agencies.

"When it is appropriate and safe to do so, FERC will send a staff engineer to the site to assist with the investigation. The Commission pledges to work closely with state officials and coordinate our investigatory efforts wherever possible."

FERC has directed Boyce Hydro "to establish an independent investigation team to undertake a forensic analysis of the root cause of the overtopping damage to Sanford Dam, as well as any other contributing causes."

"At this time, we do not want to speculate on the cause or details of the incident. We will have more information following the full investigation," Chatterjee said.

James Hall owns a cottage on Wixom Lake, damaged in Tuesday's flooding. While he criticized Boyce Hydro for its role in the Edenville dam breach, he leveled most of his ire at FERC.

"FERC, since the early 2000s, maybe even the late '90s, has had the opportunity to hold Boyce Hydro's feet to the fire and they didn't. They pussy-footed around," he said. "And now, 14, 15 years later, the citizens are the ones left holding the bag."

EGLE in '18: collapsed dam in "fair" shape

For it's part, EGLE said it "was reviewing federal records and had conducted an initial inspection of the dam in October 2018 and found that it was in fair structural condition," spokesman Nick Assendelft said in a statement emailed to the Free Press.

"However we did have strong concerns that the dam did not have enough spillway capacity to meet state requirements. We expressed those concerns to the Boyce Hydro's consultants, and were continuing conversations about that deficiency."

Those concerns had been expressed to Boyce by FERC for 14 years, to no avail, prior to EGLE's takeover of regulatory authority after the hydropower license revocation.

EGLE took enforcement action against Boyce last year "for drawing down water levels without permission, and for damage to natural resources as a result of those drawdowns," Assendelft said, adding EGLE was pursuing additional enforcement action at the time of Tuesday's breach.

The lakes created by Boyce Hydro's four dams on the Tittabawassee -- Wixom, Sanford, Smallwood and Secord -- are subject to state law allowing county governments to regulate inland lake levels, Part 307 of Public Act 451 of 1997, known as Part 307 permits. As conditions of their permits, the lakes' levels are typically drawn down in winter months, to help prevent ice buildup and damage.

The Four Lakes Task Force, an entity created by Gladwin and Midland counties which is in the process of taking over ownership and oversight of the Boyce dams over a phased-in, multiyear process, applied for and received permission from EGLE for an earlier, 8-foot drawdown of Wixom Lake levels this winter for ice reduction and to help facilitate cement repairs on the Edenville spillways.

Under provisions of its Part 307 permit, the drawdown typically begins Dec. 15, and is usually 3 feet for winter. Summer lake levels, an elevation of 675.8 feet, are then restored in early spring, when water temperatures reach 39 degrees Fahrenheit, per the permit.

"We always try to have it up for fishing, for the spawning of the fish," said Larry Woodard, president of the Wixom Lake Association.

"That was part of the decision-making process, when the fish are going to spawn."

The Wixom Lake Association provided residents with regular updates on the rising water levels earlier this year.

"On April 9, 2020, EGLE issued a permit to allow refilling of Wixom Lake," an update on the association's website dated April 15 stated.

"Wixom Lake is now being refilled to the normal summer level at approximately 8 inches per day."

On May 2, the update stated the refilling had progressed to only 6 inches below summer lake levels. "At this level the majority of lakefront owners should have adequate water depths for placement and normal use of boat hoists and docks," the statement read.

The next day, the association reported the lake levels had fully reached summer numbers.

The Free Press asked EGLE officials whether it's prudent to raise the lake levels by 3 to 8 feet in early spring, at times of record-high water across Michigan and amid several years in a row of unusually strong spring rains. They hadn't responded as of Wednesday afternoon.

In its statement Wednesday, Boyce said the raised Wixom Lake levels this spring were done "under pressure from the shoreline residents of Wixom Lake, the EGLE and the MDNR."

"Before Boyce did so, the EGLE issued it a permit to raise the impoundment, despite the fact that the EGLE Dam Safety division was well aware of the Edenville Dam's inability to meet even 50% of the PMD (Probable Maximum Flood) standard."

Delaying the raising of water levels "would be very unpopular" along Wixom lake among property owners eager to put docks in and get boats on the water, said James Hall, who owns a cottage on the lake.

"People up here are ready to go, ready to get out. Enough of sitting at home," he said.

But this spring, with these rains, spelled doom for the Edenville Dam.

"It was horrendous, the amount of water that was in people's houses," said Woodard, who witnessed it firsthand Tuesday.

Wixom Lake is now "pretty much a mud field," with the historic Tittabawassee River bed continuing flows through the Edenville Dam breach downstream, he said.

Lack of investment in dam infrastructure is not uncommon in Michigan dams, which have suffered from deferred maintenance over the course of decades, Assendelft said.

"That, combined with the historic rainfall the flooding, were factors in the Edenville failure," he said.

Most Michigan dams aging, crumbling

The failing Midland County dams are just the most high-profile examples of a chronic problem in Michigan: dams that are as aging and crumbling as Michigan's roads and bridges.

A 2018 report card on Michigan dams by the state chapter of the American Society of Civil Engineers found that while the state had improved its D-grade from the society's 2009 report card, it still had persistent issues.

"There are approximately 2,600 dams in Michigan, of which about two-thirds are older than their typical 50-year design life. In the next five years, about 80 percent of Michigan's dams will be over 50 years old," their report stated.

There were 19 high-hazard dams in unsatisfactory or poor condition in Michigan in 2018, ranking 20th among the 45 states and Puerto Rico for which the Associated Press obtained condition assessments.

Flood warnings in Michigan were issued following widespread rainfall of 4 to 7 inches since Sunday, according to the National Weather Service. Heavy runoff pushed rivers higher.

The Tittabawassee River was at 30.5 feet and rising Tuesday night -- flood stage is 24 feet. It was expected to crest Wednesday evening at a record of about 38 feet.

Contact Keith Matheny: 313-222-5021 or [email protected]. Follow on Twitter @keithmatheny.

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