Michigan residents sue state, operators over dam failures that led to flooding; Whitmer orders probe

Michigan residents sue state, operators over dam failures that led to flooding; Whitmer orders probe

In the wake of a torrent of floodwaters after two dams failed in central Michigan earlier this month, a batch of lawsuits have now flooded state and federal courts on behalf of residents and businesses.

One of the lawsuits filed last Friday in U.S. District Court by law firm FeganScott alleges the owner of the dams, Boyce Hydro, along with the Michigan Department of Environment, Great Lakes Energy (EGLE) and the Michigan Department of Natural Resources, failed to operate, fix or repair the dams "in accordance with the established standard of care."

“Thousands of lives have been dramatically altered,” Beth Fegan, one of the founding members of FeganScott, said in a statement.

“The fact is, the collapse of the Edenville Dam could have been avoided if the operators had simply followed the requirements of their dam license, which was intended to protect life and property. The operators chose not to increase spillway capacity, and now, small business owners have lost their livelihoods and thousands of families are homeless.”

The Tittabawassee River was forced out of its banks and climbed to a 35-foot crest in the city of Midland after the aging Edenville and Sanford dams failed after heavy rains.


Hunter Klich, 14, maneuvers a kayak down the middle of Walden Woods Drive, May 20, in Midland, Mich., as residents coped with flooding. (Katy Kildee/Midland Daily News via AP)

About 11,000 people were forced to evacuate, in a disaster that struck as Michigan dealt with the coronavirus pandemic.


A search and rescue boat is deployed as Saginaw Road is closed at Drake due to water over the road while floodwater rises in Midland, Mich., May 20. (Katy Kildee/Midland Daily News via AP)

One of the plaintiffs in the lawsuit, Carol Clarkson, manages the Pleasant Beach Mobile Home Resort with her husband and lives on the shores of Wixom Lake, which was drained when the Edenville Dam crumbled.

“I’m angry because this wasn’t an act of nature, this is due to neglect and the improper dam operation,” Clarkson said. “We’ve poured our heart and soul into transforming this resort, and now people have lost their boats or are pulling out of their vacation rentals. Financially, we’re seriously hurting.”

Boyce Hydro's license for the nearly century-old Edenville Dam was revoked in 2018 by federal regulations over safety violations. The Federal Energy Regulatory Commission (FERC) said it repeatedly raised concerns about the dam’s ability to prevent flooding during extreme conditions because of its inadequate spillway capacity.

The company twice lowered Wixom Lake’s level without permission after the federal license was revoked, according to EGLE, which has overseen the Edenville barrier since the federal license was withdrawn.


The remains of the Edenville Dam, as seen on May 20, in Edenville Township north of Midland. (Jake May/The Flint Journal, MLive.com via AP)

A lawsuit filed April 30 said that the lengthy drawdowns in 2018 and 2019 killed “thousands, if not millions” of freshwater mussels, many listed as endangered species.

Boyce Hydro said in a statement last week to the Associated Press that the sale of electricity generated by the dams was not enough to make probable maximum flood improvements required by FERC. The company also said had it been allowed to maintain the Edenville Dam at run of river levels “the dam would have been able to handle and safely pass the volume of water generated by this storm."

A second class-action suit filed the same day by attorneys Morgan & Morgan, Grant & Eisenhofer, and the Jenner Law offices said the flooding was preventable.

“Despite knowing the threat posed by these unsafe dams, the defendants allegedly refused to pay for much-needed repairs and upgrades,” stated Frank Petosa, spokesman for the law firms.


Sanford, Mich., residents survey the destruction in downtown Sanford, May 21. The downtown area was decimated by severe flooding caused by dam failures upstream. (Katy Kildee/Midland Daily News via AP)

A third lawsuit also was filed last Friday in federal court in Detroit. It alleges that Boyce Hydro “failed to operate, fix or repair the dams in accordance with the established standard of care, resulting in catastrophic injury and damage to residents and their properties.”

No one was killed or injured in the flooding, but scores of homes and businesses were destroyed or damaged by the rising river water.


Don Thomas of Saginaw pulls his boat up to his son Jason Thomas who went back to his house near W. Signet in Midland to retrieve his families two cats. Flooding along the Tittabawassee River in downtown Midland, Mich., on May 20. (Daniel Mears/ The Detroit News via AP)

On Wednesday, Michigan Gov. Gretchen Whitmer demanded an investigation to determine what caused the two dams to fail.

“I’m committed to doing everything I can to hold those responsible for the dams’ safety accountable,” she told reporters in Midland. “I also asked EGLE to review the issue of dam safety in Michigan and provide recommendations on policy, legislative and enforcement reforms that can prevent these harms from being repeated elsewhere.”

Whitmer, who said experts deemed the heavy rain before the dams failed to be a "500-year event," said the flooding will have a "major impact" on Midland County for the foreseeable future.

“There are a lot of problems that come with the owner of this particular dam,” Whitmer said. “There is a lot of information out there that is not exactly accurate, one of which is the assumption that it was the state that said to raise the levels.”


Michigan Gov. Gretchen Whitmer delivers a brief update on the dam breach and flooding throughout mid-Michigan counties at Meridian Elementary School in Sanford on Wednesday, May 27, 2020. (Kaytie Boomer/The Bay City Times via AP)

“Now, of course, they have all sorts of ecological concerns, but it also was because of a court order is my understanding,” she continued. “That’s precisely why it’s important that we get the facts, we share the results of the investigation so that people can understand all of the different actions or non-actions that contributed to the failing of these two dams.”

Last week, Michigan Republican Party Chair Laura Cox said in a release that Attorney General Dana Nessel should recuse her office from investigating the Edenville Dam failure and transfer her inquiry to federal authorities.


Damages on one of two North M-30 bridges on May 20, in Edenville Township north of Midland. After two days of heavy rain, the Edenville Dam failed and flood waters rushed south, ravaging the landscape in its path. (Jake May/The Flint Journal, MLive.com via AP)

When asked if a third party should be brought in to investigate, Whitmer said she was following  procedure in having EGLE conduct the probe.

“We have to go to the agency that has the expertise,” she said. “There are very few that have the kind of expertise that is really needed to be able to properly do this investigation.”

Cox slammed Whitmer's decision on Wednesday, calling it a "slap in the face" to those who were devastated by the flooding.

"An independent investigation would get the people of Midland the answers they deserve — not a bureaucratic cover-up," she tweeted. "Whitmer owes it to Michiganders."

The Associated Press contributed to this report.

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