By Nick Smith
Gongwer News Service
More than five years after catastrophic flooding occurred with the failure of the Edenville Dam in the Midland area, a trial to determine whether the state is liable for damages began on Monday.
In the class action suit, plaintiffs are arguing that the Michigan Department of Environment, Great Lakes and Energy and the Department of Natural Resources failed to adequately monitor the dam and contributed to the May 2020 dam failure and subsequent damages.
The state countered that the state was never in control of the dam and that its former owner, Boyce Hydro, was to blame.
Judge James Redford heard opening arguments Monday morning in David Krieger et al vs Department of Environment, Great Lakes, and Energy (COC Case No. 20-000094-MM), commencing a trial that is expected to last between two and three weeks.
Tom Waun, an attorney for the plaintiffs, outlined the background of issues with the dam discussed between the Federal Energy Regulatory Commission and the DNR involving concerns with the spillway and other ecological matters over the course of several years. The license for the dam was revoked by FERC in 2018.
In May 2019, a case came before the Midland County Circuit Court to set the lake level. Later that year, Boyce Hydro asked to have the lake level lowered, which it did despite being denied by the state.
The lake level was raised from 670 feet to 675.8 feet in April 2020 after authorization from EGLE, and the dam failed and caused significant
flooding the following month after a rainstorm.
“This particular lawsuit, your honor, has been filed to hold the state accountable, to hold them accountable for something that was predictable and preventable,” Waun said.
Waun said the state “abused its legitimate powers and affirmative actions directly aimed at the plaintiff’s property, and that such actions were a substantial cause of the decline in the property value.”
He pointed to a Court of Appeals ruling regarding inverse condemnation, saying that there would have to be affirmative actions by the state to raise the water level despite knowledge of the dams’ risk of failure.
“The court said that if the state concealed and obscured dangerous conditions of the dam, then those are also affirmative actions,” Waun said. “They made decisions, judge, to not share with important people the risks and the safety of the dam.”
Waun pointed out that FERC revoked the license for the dams, which is a rare occurrence.
He said one of the key items of concealment was determining the dam to be in fair condition by individuals including Luke Trumble, the dam safety engineer at the time, after FERC’s license revocation following an inspection of the dam. The other was that Trumble did not tell the Midland County circuit court judge in a hearing of safety concerns about raising water levels.
“At some point you have to make hard decisions,” Waun said. “One of the hard decisions you have to make is sometimes you have to say no.”
He compared the state having the information on the safety of the dam and allowing the lake levels to be raised to a game of Russian Roulette.
“They spun the wheel. Unfortunately, it had a bullet in the chamber, and that doesn’t make it OK to say: ‘FERC always did it this way, and so we just did it this way,’” Waun said. “Despite this fact, they raised the water level and the dams failed, and we think that the state should be accountable for that.”
Jason Thompson, another attorney for the plaintiffs, said the key question was why Wixom Lake was raised when it was unsafe to do so.
He said the state statute outlines what is safe for a dam, pointing to the standard test that a dam must pass to be considered safe, the one-half of the probable maximum flood test, which checks for overflow and ensures its structural soundness.
“What statute tells us is that if a dam fails that test, it is unsafe, hydraulically inadequate and structurally unsound,” Thompson said.
Thompson said the Edenville Dam failed that test, and that was known in January 2020.
At this point, statute kicks in and remedies are outlined to use when dealing with what is then considered a failed dam, the attorneys argued.
“When you have to do something, the implication is you have to do something to help,” Thompson said. “What happened here was, what they did was take the low level of Wixom Lake, added five feet, eight inches of water, a dramatic increase in the amount of water, a dramatic increase in the risk to that dam, and they approved that. They authorized that permit. That’s what they did in response. It was the complete opposite of what should have happened.”
Nathan Gamble, an attorney for the state, said the dam's failure was a tragedy, but not one caused by the state of Michigan.
He pointed to the focus by the plaintiffs on spillway capacity.
“The dam was built more than 50 years before modern spillway capacity standards even existed,” Gamble said. “It was constructed at a time when people weren’t thinking along those lines.”
Gamble said such problems with dams are common nationally. The dam’s owner was notified in 1993 that the dam lacked sufficient spillway capacity under modern standards. For at least 20 years, the dam owner was able to operate at the preferred lake levels prior to addressing the spillway issues.
He pointed to past inspection reports, of which there were at least 20 from over the years, to further dispute the plaintiffs’ stance on the spillway concerns.
“None of them advised lowering Wixom Lake because of the dam’s lack of spillway capacity,” Gamble said.
Gamble pointed to a 2015 inspection report that the dam embankments were not subject to liquefaction. He said there are several yearly inspection reports, all of which found the dam embankments in good condition and never advised drawing down Wixom Lake.
In a 2018 FERC inspection report, completed three months prior to the dam license’s revocation, static liquefaction was not considered as a potential failure mode for the dam. Static liquefaction was not a widely considered factor for water storage dams at the time, Gamble said.
FERC in its license revocation order said the dam was a high-hazard dam and lacked spillway capacity. It also did not recommend drawing down Wixom Lake.
“This revocation order warned nothing about the embankments, nothing about lake levels, and certainly did not warn that the dam would fail if the normal summer levels were maintained,” Gamble said.
The counties quickly moved to create the special assessment district in October 2018 to fix the issues with the dam.
There were plans in place to begin addressing improvements beginning in fall 2020 with the replacement of the spillway gates. The plan was to meet spillway capacity requirements by 2023.
“This idea that EGLE and DNR somehow just ignored this issue; the evidence doesn’t support them,” Gamble said.
Gamble said the state never took over operational control of the dam from Boyce Hydro. He pointed to the contract that Boyce Hydro had with the Four Lakes Task Force, for $40,000 per month, to maintain Wixom Lake levels.
Boyce Hydro moved Wixom Lake to its normal levels four weeks prior to its permit was approved to do so, in spring 2019.
Gamble said Boyce Hydro’s move to lower the lake levels for the winter and then raise them again in spring 2020 was to prevent ice formation during the winter months and was always what it had planned to do under its agreement with the Four Lakes Task Force.
“This idea that EGLE and DNR forced Boyce Hydro to return Wixom Lake to the normal level in the spring of 2020 is not supported by the evidence,” Gamble said.
He also countered allegations that the state concealed the dam’s lack of spillway capacity from the public.
Gamble said that the dam is a high hazard dam was public knowledge in past reports on the dam. It also was in court proceedings in circuit court when the order for the lake level to be set, and the Four Lakes Task Force while drumming up public support for maintaining the dam that it needed repairs.
“I don’t understand why the plaintiffs think that this information was kept from the public. It was very widely known,” Gamble said.
He also disputed claims that a dam should stop operations if it lacks sufficient spillway capacity. Gamble said there is nothing in statute stating any such requirement.
Gamble also pointed to the May 2022 independent forensic team report on the dam’s failure. He said it was found that pre-lowering Wixom Lake would have made little difference.
“Even with the benefit of hindsight, the independent forensic team concluded that pre-lowering Wixom Lake, quote, ‘would not have been a good option to exercise,’” Gamble said.
He also disputed claims that FERC had no enforcement capabilities, saying they could have ordered Boyce Hydro to lower the lake levels. The option was weighed as far back as 2013 but was not deemed a good option, Gamble said.
Gamble said a key point was that the state never took control of the dam.
“The EGLE or DNR never took over operational control of this private dam,” Gamble said. “We wish to emphasize this is not about whether this was a tragedy that happened. It did, but the evidence shows that the state of Michigan is not responsible for it. There is no taking here.”
Gongwer News Service
More than five years after catastrophic flooding occurred with the failure of the Edenville Dam in the Midland area, a trial to determine whether the state is liable for damages began on Monday.
In the class action suit, plaintiffs are arguing that the Michigan Department of Environment, Great Lakes and Energy and the Department of Natural Resources failed to adequately monitor the dam and contributed to the May 2020 dam failure and subsequent damages.
The state countered that the state was never in control of the dam and that its former owner, Boyce Hydro, was to blame.
Judge James Redford heard opening arguments Monday morning in David Krieger et al vs Department of Environment, Great Lakes, and Energy (COC Case No. 20-000094-MM), commencing a trial that is expected to last between two and three weeks.
Tom Waun, an attorney for the plaintiffs, outlined the background of issues with the dam discussed between the Federal Energy Regulatory Commission and the DNR involving concerns with the spillway and other ecological matters over the course of several years. The license for the dam was revoked by FERC in 2018.
In May 2019, a case came before the Midland County Circuit Court to set the lake level. Later that year, Boyce Hydro asked to have the lake level lowered, which it did despite being denied by the state.
The lake level was raised from 670 feet to 675.8 feet in April 2020 after authorization from EGLE, and the dam failed and caused significant
flooding the following month after a rainstorm.
“This particular lawsuit, your honor, has been filed to hold the state accountable, to hold them accountable for something that was predictable and preventable,” Waun said.
Waun said the state “abused its legitimate powers and affirmative actions directly aimed at the plaintiff’s property, and that such actions were a substantial cause of the decline in the property value.”
He pointed to a Court of Appeals ruling regarding inverse condemnation, saying that there would have to be affirmative actions by the state to raise the water level despite knowledge of the dams’ risk of failure.
“The court said that if the state concealed and obscured dangerous conditions of the dam, then those are also affirmative actions,” Waun said. “They made decisions, judge, to not share with important people the risks and the safety of the dam.”
Waun pointed out that FERC revoked the license for the dams, which is a rare occurrence.
He said one of the key items of concealment was determining the dam to be in fair condition by individuals including Luke Trumble, the dam safety engineer at the time, after FERC’s license revocation following an inspection of the dam. The other was that Trumble did not tell the Midland County circuit court judge in a hearing of safety concerns about raising water levels.
“At some point you have to make hard decisions,” Waun said. “One of the hard decisions you have to make is sometimes you have to say no.”
He compared the state having the information on the safety of the dam and allowing the lake levels to be raised to a game of Russian Roulette.
“They spun the wheel. Unfortunately, it had a bullet in the chamber, and that doesn’t make it OK to say: ‘FERC always did it this way, and so we just did it this way,’” Waun said. “Despite this fact, they raised the water level and the dams failed, and we think that the state should be accountable for that.”
Jason Thompson, another attorney for the plaintiffs, said the key question was why Wixom Lake was raised when it was unsafe to do so.
He said the state statute outlines what is safe for a dam, pointing to the standard test that a dam must pass to be considered safe, the one-half of the probable maximum flood test, which checks for overflow and ensures its structural soundness.
“What statute tells us is that if a dam fails that test, it is unsafe, hydraulically inadequate and structurally unsound,” Thompson said.
Thompson said the Edenville Dam failed that test, and that was known in January 2020.
At this point, statute kicks in and remedies are outlined to use when dealing with what is then considered a failed dam, the attorneys argued.
“When you have to do something, the implication is you have to do something to help,” Thompson said. “What happened here was, what they did was take the low level of Wixom Lake, added five feet, eight inches of water, a dramatic increase in the amount of water, a dramatic increase in the risk to that dam, and they approved that. They authorized that permit. That’s what they did in response. It was the complete opposite of what should have happened.”
Nathan Gamble, an attorney for the state, said the dam's failure was a tragedy, but not one caused by the state of Michigan.
He pointed to the focus by the plaintiffs on spillway capacity.
“The dam was built more than 50 years before modern spillway capacity standards even existed,” Gamble said. “It was constructed at a time when people weren’t thinking along those lines.”
Gamble said such problems with dams are common nationally. The dam’s owner was notified in 1993 that the dam lacked sufficient spillway capacity under modern standards. For at least 20 years, the dam owner was able to operate at the preferred lake levels prior to addressing the spillway issues.
He pointed to past inspection reports, of which there were at least 20 from over the years, to further dispute the plaintiffs’ stance on the spillway concerns.
“None of them advised lowering Wixom Lake because of the dam’s lack of spillway capacity,” Gamble said.
Gamble pointed to a 2015 inspection report that the dam embankments were not subject to liquefaction. He said there are several yearly inspection reports, all of which found the dam embankments in good condition and never advised drawing down Wixom Lake.
In a 2018 FERC inspection report, completed three months prior to the dam license’s revocation, static liquefaction was not considered as a potential failure mode for the dam. Static liquefaction was not a widely considered factor for water storage dams at the time, Gamble said.
FERC in its license revocation order said the dam was a high-hazard dam and lacked spillway capacity. It also did not recommend drawing down Wixom Lake.
“This revocation order warned nothing about the embankments, nothing about lake levels, and certainly did not warn that the dam would fail if the normal summer levels were maintained,” Gamble said.
The counties quickly moved to create the special assessment district in October 2018 to fix the issues with the dam.
There were plans in place to begin addressing improvements beginning in fall 2020 with the replacement of the spillway gates. The plan was to meet spillway capacity requirements by 2023.
“This idea that EGLE and DNR somehow just ignored this issue; the evidence doesn’t support them,” Gamble said.
Gamble said the state never took over operational control of the dam from Boyce Hydro. He pointed to the contract that Boyce Hydro had with the Four Lakes Task Force, for $40,000 per month, to maintain Wixom Lake levels.
Boyce Hydro moved Wixom Lake to its normal levels four weeks prior to its permit was approved to do so, in spring 2019.
Gamble said Boyce Hydro’s move to lower the lake levels for the winter and then raise them again in spring 2020 was to prevent ice formation during the winter months and was always what it had planned to do under its agreement with the Four Lakes Task Force.
“This idea that EGLE and DNR forced Boyce Hydro to return Wixom Lake to the normal level in the spring of 2020 is not supported by the evidence,” Gamble said.
He also countered allegations that the state concealed the dam’s lack of spillway capacity from the public.
Gamble said that the dam is a high hazard dam was public knowledge in past reports on the dam. It also was in court proceedings in circuit court when the order for the lake level to be set, and the Four Lakes Task Force while drumming up public support for maintaining the dam that it needed repairs.
“I don’t understand why the plaintiffs think that this information was kept from the public. It was very widely known,” Gamble said.
He also disputed claims that a dam should stop operations if it lacks sufficient spillway capacity. Gamble said there is nothing in statute stating any such requirement.
Gamble also pointed to the May 2022 independent forensic team report on the dam’s failure. He said it was found that pre-lowering Wixom Lake would have made little difference.
“Even with the benefit of hindsight, the independent forensic team concluded that pre-lowering Wixom Lake, quote, ‘would not have been a good option to exercise,’” Gamble said.
He also disputed claims that FERC had no enforcement capabilities, saying they could have ordered Boyce Hydro to lower the lake levels. The option was weighed as far back as 2013 but was not deemed a good option, Gamble said.
Gamble said a key point was that the state never took control of the dam.
“The EGLE or DNR never took over operational control of this private dam,” Gamble said. “We wish to emphasize this is not about whether this was a tragedy that happened. It did, but the evidence shows that the state of Michigan is not responsible for it. There is no taking here.”
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