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AG Nessel, EGLE, DNR Take Action Against Hydroelectric Companies for Creating Safety Hazards on Kalamazoo River
March 01, 2022
LANSING - After repeated attempts to urge sediment cleanup, 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. The action, filed late this afternoon, is against STS Hydropower, LLC, and Eagle Creek Renewable Energy, LLC, due to the companies' grossly mismanaged drawdown of the lake to complete repairs of their dam on the Kalamazoo River.
The State of Michigan supports all dam owners appropriately maintaining and completing repairs to their dams. But in doing so, a dam owner is legally obligated to complete such repairs in a manner that does not unnecessarily impact the public health, safety, and welfare; the natural resources of the State; and the environment.
Despite repeated demands by the State of Michigan and the Federal Energy Regulatory Commission (FERC) for measures to minimize the drawdown's environmental impact, the companies' mismanaged drawdown resulted in hundreds of thousands of cubic yards of sediment mobilizing down a stretch of approximately 30 miles of the Kalamazoo River, creating a public safety hazard, choking the river and smothering aquatic life and habitat, as well as impeding recreational use.
The hazardous conditions have led to reports of people needing rescuing by emergency responders - most recently in September when a man was trapped for hours in waist-deep mud - as well as deer getting caught in deposits.
The sediment deposits in the River span up to multiple acres and are up to approximately 12-feet deep in some locations. For reference, it is estimated that enough sediment was released from the impoundment to cover a football field approximately 173 feet deep in sediment, which is about 16 stories tall.
"The lack of urgency by the companies to address these hazards left no other alternative than to take this civil action," Nessel said. "STS Hydropower, LLC, and Eagle Creek Renewable Energy, LLC, should now bear the burden of repairing the damage and being held accountable for neglecting legal obligations."
"Our preference is to work cooperatively to ensure prompt and effective cleanups and ensure the environment and the public are protected," EGLE Director Liesl Clark said. "In this case the responsible party has not fulfilled their obligations to the law and the community."
The companies' refusal to employ reliable forms of management for the drawdown to properly mitigate damage to the river has created significant, avoidable harms, all while STS Hydropower, LLC, and Eagle Creek Renewable Energy, LLC, were profiting from the use of the public's waterways.
The lawsuit, which is now available on the Department of Attorney General's website, 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.
Specifically, the Ingham County Circuit Court filing seeks:
- A declaration that Defendants STS Hydropower, LLC, and Eagle Creek Renewable Energy, LLC, 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 Hydropower;
- Civil fines;
- Recovery of the full value of natural resource damages;
- A declaration that Defendants' violations of the common law and NREPA have created an ongoing public nuisance and an order requiring the 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.
On October 31, 2019, Eagle Creek staff notified EGLE and DNR that the Defendants would be conducting a drawdown of Morrow Lake "effective immediately," claiming the drawdown was an emergency. At that time, Defendants indicated the drawdown would only last four months, but Morrow Lake remained at the lowered elevation for more than a year, until December of 2020.
As soon as the State was alerted, it attempted to engage the Defendants in discussions to avoid a full drawdown and minimize the impact of the drawdown by employing reliable and well-known mitigation techniques. Defendants reduced the rate at which it drew down the lake in response to the State's concerns and completed a mussel relocation effort after the lake had already been lowered, but Defendants did little else to prevent the disastrous impact of their mismanaged drawdown.
Throughout the drawdown and aftermath, the State demanded 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. Defendants did not comply with these demands.
It took Defendants until June 29, 2020, nearly eight months after the start of the drawdown, to submit plans to FERC for repair of the gates. And Defendants did not undertake even minimal efforts to manage the sediments until July and August of 2020, well past the time when such measures could effectively prevent massive mobilization of sediment into downstream waters.
Over one year after the drawdown of Morrow Lake, in December of 2020, the gate replacement was completed and by January 12, 2021, Morrow Lake was refilled to its normal water elevation.
Since then, the State of Michigan has continued to demand that Defendants restore the River and compensate the public for damage caused by the drawdown. However, Defendants only completed an investigation for about seven of the 30 impacted miles of river and completed one small sediment dredging project that addressed less than one percent of the estimated sediment released.