Michigan Attorney General Dana Nessel is taking civil action — on behalf of the Michigan Department of Environment, Great Lakes, and Energy (EGLE) and the Michigan Department of Natural Resources (DNR) — related to Morrow Lake in Kalamazoo County.
STS Hydropower LLC owns and operates the 800 kW Morrow Hydroelectric Project on the Kalamazoo River. The action, filed March 1, is against STS and Eagle Creek Renewable Energy LLC due to what is alleged to be the companies’ “grossly mismanaged drawdown of the lake to complete repairs of their dam on the Kalamazoo River,” according to a release.
The Attorney General’s office said the state of Michigan and the Federal Energy Regulatory Commission (FERC) repeatedly demanded measures to minimize the drawdown’s environmental impact. But the companies’ drawdown allegedly resulted in hundreds of thousands of cubic yards of sediment mobilizing down a stretch of about 30 miles of the river. The sediment created a public safety hazard, choked the river and smothered aquatic life and habitat, and impeded recreational use.
The sediment deposits span up to multiple acres and are up to about 12 feet deep in some locations. It is estimated that enough sediment was released from the impoundment to cover a football field about 173 feet deep, or roughly the height of a 16-story building. The hazardous conditions have led to people needing rescuing by emergency responders — most recently in September when a man was trapped for hours in waist-deep mud — as well as wildlife that became trapped in deposits.
“The lack of urgency by the companies to address these hazards left no other alternative than to take this civil action,” Nessel said.
The lawsuit asks for relief under the Michigan Natural Resources and Environmental Protection Act (NREPA) and under common law to hold the companies accountable for the injuries they have caused the public and natural resources and to vindicate the public’s ability to safely recreate.
The Ingham County Circuit Court filing seeks:
- A declaration that STS and Eagle Creek Renewable Energy violated Parts 17, 31, 301, 303, 401, and 487 of the NREPA, as well as the common law doctrines of conversion and public nuisance;
- A declaration that Eagle Creek is the alter ego of STS;
- Civil fines;
- Recovery of the full value of natural resource damages;
- A declaration that the defendants’ violations of the common law and NREPA have created an ongoing public nuisance and an order requiring abatement of the public nuisance;
- An order requiring defendants to restore and repair the damage they caused;
- The relief authorized by MCL 324.1704, MCL 324.3115, MCL 324.30112 and MCL 324.30316; and
- An order reimbursing the state’s enforcement expenses, including oversight costs, litigation expenses and attorney fees.
Statement from STS
In response to an inquiry from Hydro Review, STS provided the following statement:
“The conversations between STS and the state of Michigan about the Morrow Dam began in 2019, when we saw an urgent need to avoid what could have been a significant public safety incident. The emergency drawdown of Morrow Lake eliminated the risk of an uncontrolled release of water from Morrow Lake, which could have resulted in a downstream disaster similar to other events, in Michigan and elsewhere, where dams suffered unexpected and immediate failure. Although the drawdown has come at significant expense to STS, preserving public safety is our number one priority. Safety is an obligation we owe downstream communities as a responsible neighbor and is in line with our legal obligations.
“At the time we identified the deteriorated condition of the spillway gates at Morrow, we immediately notified and maintained frequent consultation with Michigan’s EGLE, the state DNR and federal regulators. At the direction of the state agencies, STS reduced the depth of the drawdown. We also released water at a reduced rate. These are recognized steps in our industry to reduce a drawdown’s impact on sediment transfer and wildlife.
“We worked throughout 2020 to successfully replace the dam’s gates and by early January of 2021, we refilled Morrow Lake. We have spent millions of dollars on project repair, agency-directed mapping and analysis, sediment control and river restoration work. All of these efforts have proceeded in close consultation with the state.
We had been in active settlement discussions with the state for more than a year. Last we heard from the state, there was no reason to believe those conversations would not continue. But almost five months after our last contact, and without any further communication from the state, the state has decided to file suit.
“We are still open to a fair resolution — in court or otherwise — that takes into account all the circumstances and the best interest of everyone involved.”
Timeline from AG
On Oct. 31, 2019, Eagle Creek staff notified EGLE and DNR that the defendants would be conducting an emergency drawdown of Morrow Lake “effective immediately.” The defendants indicated the drawdown would last four months, but Morrow Lake remained at the lowered elevation until December 2020.
The state allegedly attempted to engage the defendants in discussions to avoid a full drawdown and minimize the impact by using various mitigation techniques. The defendants allegedly reduced the rate at which they drew down the lake in response to the state’s concerns and completed a mussel relocation effort after the lake had been lowered, but “did little else to prevent the disastrous impact of their mismanaged drawdown.”
Throughout the drawdown and aftermath, the state demanded the defendants take action to address the drawdown’s environmental impacts. The state sent letters, provided direction in multiple meetings, and issued violation notices that provided information to and demanded action by the defendants. The defendants did not comply with these demands, the lawsuit alleged.
On June 29, 2020, the defendants submitted plans to FERC for repair of the gates. But even minimal efforts to manage the sediments were not undertaken until July and August of 2020, the suit said.
In December 2020, the gate replacement was completed and by Jan. 12, 2021, Morrow Lake was refilled to its normal water elevation.
The state said it has continued to demand that the defendants restore the river and compensate the public for damage caused by the drawdown. However, the defendants allegedly only completed an investigation for about seven of the 30 impacted miles of river and completed one sediment dredging project that addressed less than 1% of the estimated sediment released.
