State Says Michigan Capitol Confidential Wrong, It Did Not Demand Dam Water Be Raised In Lawsuit

Michigan’s lead environmental regulatory agency has said that a Michigan Capitol Confidential article was inaccurate when it reported that a state lawsuit against a Midland dam owner sought an order to raise water levels behind the dam. In May, the dam in question failed, causing massive flooding in Midland County and the evacuation of thousands.

Hugh McDiarmid Jr., communications manager for the Michigan Department of Environment, Great Lakes and Energy, pointed to a sentence in the article that stated, “Michigan’s Attorney General filed a lawsuit demanding that the owners raise water levels behind the Edenville dam.”

“The lawsuit sought no change in water levels,” McDiarmid said in a series of emails. “Compelling the defendant to maintain the lake’s court-ordered level would be part of repairing the damage and restoring to previous condition. There is no indication in this lawsuit – or anywhere else for that matter – that the State sought any change in legally-mandated water levels to do so. To suggest the lawsuit ‘demanded that the owners raise water levels’ simply not true. It made no such demand.”

"If the AG wanted the water level raised, she’d have said so…she’s not very shy!" McDiarmid said. "Additionally, no EGLE, AG, or DNR action or communication ever suggested such a thing…….it wasn’t under consideration. There’s a reason the story mentions mussels and natural resources dozens of times, and lake levels only once in passing. That’s because it is about past damages to natural resources, not lake levels."

The state’s lawsuit against Boyce Hydro Power mentions the term “drawdown” - lowering the water level - 49 times. The last mention refers to a final drawdown of Wixom Lake in December 2019. There is no indication in the lawsuit that the water level had been raised again after the December 2019 drawdown.

This action drained eight feet from the lake, according to the lawsuit, and put it below a standard minimum level 672.8 feet allowed in winter by the Federal Energy Regulatory Commission.

The lawsuit also seeks remedies. “The State seeks an order abating the public nuisance, restoring as much as possible the Wixom Lake ecosystem to its state prior to the Drawdowns, and forbidding Defendants from further harming the Wixom Lake ecosystem without permits,” the lawsuit said.

Jason Hayes, director of environmental policy for the Mackinac Center, said the requested remedy could not be accomplished without raising the lake’s water levels, whether measured from their current state — after the dam’s failure — or their levels in December 2019 — the levels which EGLE point to as the basis for their lawsuit.

A second remedy sought by the state cites a statute. “The State seeks an order under MCL 324.30112 requiring Defendants to restore the Wixom Lake ecosystem to its prior condition, including restoration of the freshwater mussels, along with the assessment of civil fines.”

The calls to restore the Wixom Lake ecosystem “to its prior condition” before the drawdown can only be accomplished by raising the water levels, Hayes said.

“For anyone with even a passing understanding of lake, riparian, and wetlands ecology, restoring the Wixom Lake ecosystem and associated wetlands to the standard that EGLE is asking would necessarily require the water levels be raised from their current levels and then maintained,” Hayes said in an email. “If they do not intend that Boyce Hydro must raise and then maintain the water levels, they should be very clear in their explanation of how the company could comply with their list of demands without doing that.”