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New flood lawsuit claims Michigan mismanaged dam

Frank Witsil
Detroit Free Press

A week after devastating flooding in mid-Michigan, four homeowners filed a new class-action lawsuit, this one against Michigan’s Department of Environment, Great Lakes and Energy claiming mismanagement of the Edenville dam.

Two other lawsuits also were filed in federal court in Detroit against the dam's owner, Boyce Hydro.

All three lawsuits spotlight an issue in which controversy is certain to rise, long after the record floodwaters have receded: The potential danger and likelihood of a dam failure was known by the dam owner, government regulators and local residents. So who is to blame? And who should pay damages?

Workers look over the damage of a washed-out bridge on M-30 above Wixom Lake on May 21, 2020, after the Edenville Dam failed from heavy rains that flooded the area

Democratic Gov. Gretchen Whitmer said more than once last week that the state had begun looking into the collapse and would hold responsible parties accountable, while the GOP fired off its own statement, suggesting that the attorney general has a conflict of interest in investigating.

Boyce Hydro, which declined to comment on the lawsuits against it, is pointing a finger at EGLE for the dam failure, saying the state cracked down on its reduction of Wixom Lake levels. 

EGLE also had no comment on the litigation, but the state attorney general's office, in response to the Republican Party's allegations last week, took exception to Boyce Hydro blaming the state. 

In the latest lawsuit, a 28-page complaint was filed in the Michigan Court of Claims by David and Andrew Krieger and James and Margaret Sperling. The Kriegers and Sperlings own property on the banks of the Tittabawassee River, less than a mile south of the dam.

Michael Pitt, the attorney for the plaintiffs, said that even though EGLE does not own the Edenville Dam, it is responsible for ensuring the "safety and structural integrity of all public-use dams in Michigan."

"Michigan law provides a unique avenue for residents to sue the state in its Court of Claims for damages or destruction to their property," Pitt said. "This option is not available for lawsuits filed in the federal court."

Pitt also is one of the lead attorneys representing Flint residents in their class-action case against the state claiming neglect in allowing lead contamination of the city's water system. 

Read more:

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Jim Sperling, an Edenville Township trustee, said a local authority, the Four Lakes Task Force, was set up in 2019 by Midland and Gladwin counties to oversee the maintenance and operations of four dams, including Edenville, and lakes.

"Our community has been aware and concerned about the poor condition of the Edenville Dam for many years," Sperling said. "The potential danger it posed to a huge amount of land and property downriver was understood and a corrective plan was in place."

The lawsuit claims that the 96-year-old earthen embankment failed after days of heavy rain, releasing a torrent of water from the nearly 2,000-acre reservoir, Wixom Lake, into the river, which overflowed its banks.

Homes and businesses were flooded, and an estimated 10,000 people had to be evacuated. Parts of downtown Midland were underwater, and the water overflowed the Sanford Dam, which also failed.

The plaintiffs claim federal regulators had demanded changes to the dam design for decades, but the state did not order the necessary repairs.

Michigan Republican Party Chairman Laura Cox on Friday seemed to use similar logic when calling for Attorney General Dana Nessel to recuse her office from the investigation of the Edenville Dam breach because Cox claimed she wanted more water added to promote the safety of freshwater mussels.

Nessel's office responded that Cox's comments were "untrue and irresponsible."

And days after the flood, EGLE also announced it had a new mapping tool listing each of the 1,059 state-regulated dams — 730 of which are privately owned — with information about conditions, inspections and hazard potentials.

Of those dams, the department said, 85 have “high downstream hazard” designation because of their potential for affecting population centers and property, five are rated poor and none are rated unsatisfactory.

"The failure of the Edenville and Sanford dams has highlighted the dangers of aging and inadequate infrastructure," said Teresa Seidel, director of EGLE’s Water Resources Division. "We created the map to help the public better understand what dams are in their community and the potential risks to life and property."

A flood lawsuit against Boyce Hydro claimed negligence, nuisance and trespassing.

"This was not an unforeseen event," attorney Jonathan Marko, representing the plaintiffs, said. "This was a disaster waiting to happen and defendants should answer for the tens of thousands of people who have lost or sustained damage to their homes during an already difficult time."

Dan Curth, representing Boyce, said the company did not comment on litigation.

And another lawsuit also claimed the dam owners acted with negligence. 

"This entirely preventable disaster has upended the lives and businesses of thousands, forcing residents into crowded shelters amid a pandemic and shutting down already-suffering businesses during a recession," said attorneys Frank Petosa and Rob Jenner in a joint statement. "We believe this is yet another case of corporate interests putting profits over people."

Contact Frank Witsil: 313-222-5022 or Free Press reports contributed.