State seeks access to failed dam and lake bed to assess damage to mussels

Michigan agencies have served the owners of the failed Edenville dam with a warrant to inspect the structure for safety violations and the Wixom Lake bed and adjacent wetlands for evidence that mussels or other aquatic creatures were harmed by its failure last month.

Boyce Hydro, the dam’s owner, cited the state’s warrant in its effort to move an earlier state lawsuit against the company to U.S. District Court. Boyce successfully argued that the lawsuit involved a federal endangered species and federal agencies — issues best addressed by a federal judge.

Last Wednesday’s warrant, backed by federal wildlife agencies and signed by Clare County Magistrate Steven Worpell, came after the state in early May sued dam owner Boyce Hydro for low lake levels that allegedly killed mussels in Wixom Lake. 

The warrant comes as questions persist over whether regulators were more concerned in the months preceding the dam’s failure about an endangered mussel or the high risk to human life posed by a structure with known safety defects.

“That’s Michigan’s priority again: To save the mussels,” Boyce Hydro lawyer Lawrence Kogan said Monday.

Boyce Hydro has maintained the state’s concern over mussel welfare, and residents’ recreational concerns led the company to raise water levels in the man-made lake in April, weeks before historic flooding that preceded the failure of the 96-year-old structure. 

The claim is “utter nonsense,” said Hugh McDiarmid Jr., a spokesman for the Department of Environment, Great Lakes and Energy. Administrative warrants are standard procedure “to ensure legal admissibility of data and evidence collected.”

The dam owner’s mussel argument, he said, is “a continuation of Boyce’s attempts to absolve themselves of responsibility for this disaster by shifting the focus from their abysmal record of noncompliance. Their disregard for damages they’ve inflicted on the state’s natural resources is troubling, but their disregard for public safety is indefensible.”

Lake level sparring

The Federal Energy Regulatory Commission revoked the Edenville Dam’s license to generate electricity in September 2018, saying the owners failed for years to correct a fatal flaw that put downstream communities at tremendous risk of flooding and loss of life. Since it was no longer producing energy, regulatory oversight of the dam passed to the state.

After assuming oversight, Michigan’s agencies opposed permit applications in 2018 and this past winter that sought to lower Wixom Lake levels to ease winter maintenance and maintain safety. Although denied a permit, Boyce Hydro lowered levels anyway. 

The state then took action, based in part on suspected damage to the freshwater mussel population, including snuff box mussels. On May 1, Michigan Attorney General Dana Nessel filed suit to force payment for the damaged aquatic life and to stop the company from lowering future lake levels without approval.

In April, weeks ahead of the flood, the company initiated an application for a permit to raise water levels to comply with Gladwin County court orders, state environmental demands and the concerns of lakeside residents, Boyce said. The dam failed on May 19, causing an estimated $200 million in damage in Midland County.

The pressure it asserted was focused completely on winter lake levels, not the summer lake levels and only to bring the company into compliance with court orders, McDiarmid said.

The state’s concerns in its May 1 lawsuit focused on harm to freshwater mussels, in particular snuff box mussels, which usually live in fresh water creeks but also can be found in large rivers and Lake Erie, according to the U.S. Fish and Wildlife Service. They are considered an endangered species that are threatened by invasive zebra mussels, pollution and dams. Wixom Lake was created by the building of the Edenville Dam.  

In response to the state’s administrative warrant, Boyce filed Friday to have the state’s lawsuit moved from Ingham County to federal district court in Western Michigan. The change in jurisdiction has been made, according to Nessel’s office. 

The state-filed lawsuit raises federal issues, laws and regulations that govern dam operations specific to the Federal Energy Regulatory Commission’s oversight and the oversight of other federal environmental agencies, Boyce’s Friday motion argued. 

The Federal Energy Regulatory Commission regulated the Edenville Dam for decades and had scolded the company repeatedly for failing to maintain proper spillway capacity. Federal regulators finally revoked the dam’s energy production license in 2018 and transferred jurisdiction to the state.

Included in Boyce’s motion to have the case moved to federal court were the warrant for state agencies to inspect Wixom Lake bottom lands and affidavits submitted in support of the warrant by the state departments of Natural Resources and Environment, Great Lakes and Energy.

Fight over mussels, other creatures

DNR Natural Resources Manager Jeffrey Jolley in his affidavit noted the dam breach “exposed approximately 560 acres of bottomland that provided habitat for freshwater mussels and other aquatic creatures.”

Jolley sought the warrant on behalf of the DNR, Michigan’s environmental agency, and several federal agencies to determine through June 26 what, if any, aquatic species were harmed by the breach. 

Besides the impact to mussels, the DNR has the responsibility to enforce sport fishing laws regarding the manner and time of taking of various aquatic life, including mollusks, crustaceans, fish, amphibians and reptiles, the affidavit said. 

Environmental quality analyst Eric Decker also submitted an affidavit in support of the warrant, noting the flood exposed several “probable violations of Michigan law” regarding dam safety, water resources, wetlands and lake levels. The potential violations included inadequate dam maintenance, “substantial impacts” to Wixom Lake property owners, diminished inland lakes or streams, drained wetlands and unauthorized lake level changes, according to the document. 

Since Boyce Hydro owns “nearly all of the bottomlands of Wixom Lake,” Decker sought court permission to gain access to and inspect the Edenville Dam and exposed bottomlands through June 26, again in collaboration with the DNR and several federal agencies. 

Boyce Hydro argued in a Thursday letter to the U.S. Fish and Wildlife Service that, despite state claims that the lake served as a “critical habitat” to the snuff box mussel, the federal agency in 2018 “had been unable to determine and designate” whether the mussel was present in Wixom Lake, let alone whether the lake served as a “critical habitat.”

The motion muses that federal regulators actually had jurisdiction over any federally protected mussels in the man-made lake, jurisdiction that the U.S. Fish and Wildlife Service asserted in February when federal officials inquired after state reports of the killing of the federally protected “snuffbox mussel” in Wixom Lake. 

Boyce Hydro also argued there was a lingering question as to whether the “duty of care” for the dam established under federal control remained with the federal regulators even after it stopped producing electricity. The lawsuit refers to a 2018 ruling from the Federal Energy Regulatory Commission that allowed Boyce Hydro to lower Wixom Lake levels temporarily to conduct maintenance on another dam that continued to produce electricity. 

eleblanc@detroitnews.com

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