Standardization and Cooperation Needed to Fix Crumbling Infrastructure

Noah Cicurel
Associate Editor
Loyola University Chicago School of Law, JD 2022
Northeastern Michigan was already facing a pandemic on May 19 when a breach in the Edenville dam forced 10,000 residents to flee their homes in the face of deadly floodwater. The dam failure elevates the need for state and federal regulators to standardize regulations and collaborate on their enforcement to prevent similar incidents. 
History of non-compliance
In 1998, the Federal Regulatory Commission (“FERC”) licensed Boyce Hydro Power LLC (“Boyce Hydro”) to produce hydroelectric power at the Edenville dam. For at least 16 years, FERC noted Boyce Hydro’s failure to abide by their recording standards and hide potential issues. FERC also had a concern with the dam’s insufficient spillway capacity, which is supposed to help drain excess water in the event of heavy rain and prevent the kind of breach that later occurred. FERC revoked Boyce Hydro’s license in September 2018, noting that its “longstanding failure to address the project’s inadequate spillway capacity [demonstrates] … a pattern of delay and indifference to the potential consequences of that danger, which must be remedied in order to protect life, limb, and property.”
After revoking the license, FERC gave their regulatory control to the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”). Only days after receiving regulatory control, EGLE conducted their own inspection but found that “the dam was observed to be in fair structural condition” and “there were no observed deficiencies that would be expected to cause immediate failure of the dam.” While EGLE’s initial assessment may appear naïve given that FERC had already found the dam non-compliant, the department maintains it acted properly because there was no system to quickly comb through decades of federal reports to readily address whether the dam met the Michigan criteria.
Different regulation standards leads to lack of accountability
As provided by Michigan statute, EGLE mandates that dams be able to manage at least 50% of a probable maximum flood, meanwhile, FERC requires double this level. During the 18-month span before the incident, EGLE had to comb through decades of federal reports to determine whether Boyce Hydro met their standard. They also mandated Bryce Hydro conduct their own analysis on the dam’s integrity, which was due in March but not given to EGLE before the dam failed. Additionally, while FERC emphasized examining the physical structure and design, EGLE focused on what they viewed as “illegal drawdowns” in which Bryce Hydro raised and lowered the water level without prior warning, as required by EGLE.
On August 11, FERC and EGLE sent an independent forensic investigation team to examine why the dam ultimately failed jointly stating that “that the people of Michigan and public safety interests deserve expeditious action to gather a full and accurate accounting of what occurred.” Now, three months later, there are at least 23 lawsuits moving forward against Boyce Hydro, EGLE, and the State of Michigan. In numerous statements, Michigan officials continue to press that it was FERC’s failure to act as the regulatory body and seemingly allow the company to not follow their regulations which led to the abrupt disaster. EGLE’s lawsuit against the company argues that “the State had limited knowledge of FERC’s concerns related to the Dam’s safety and spillway capacity drawing FERC’s jurisdiction over the Dam.”
Standardization required between regulators
The Edeville dam failure was not an isolated incident. Two-thirds of Michigan’s dams are now older than the recommended 50-year limit and over 440 bridges are rated in serious or critical condition. This catastrophe shows the need for better coordination and standardization between the federal and state regulators to prevent future incidents.
First, for regulations as vital as spillway capacity, there needs to be only one institutional standard for both the federal and state regulators. This would reduce the time and resources required to determine whether to take legal action, allowing agencies to focus on enforcing regulations rather than finding what another regulator has already determined to be non-compliance. While states may wish to have their own standards, the low quantity of regulators per dam—with only three staff overseeing 1,100 dams—makes determining and enforcing timely compliance unmanageable.
Next, regulators need clearer roles in order to enforce their standards. FERC had regulatory authority over Bryce Hydro for decades but could only revoke their license to produce hydroelectric power. Despite possessing sufficient informationthat the dam had a significant risk of collapse, FERC lacked the capacity to demand Boyce Hydro reinforce the dam and EGLE had to independently come to the same conclusion, but it did not before the incident. As soon as FERC made their determination that the dam was non-compliant, EGLE should have been able to bring legal action.
The Edenville dam failure is only one example of a looming problem across the country. Without better coordination between regulatory agencies, enforcing compliance will continue to be overly burdensome and another dam could unnecessarily collapse.