In an Oct. 6, 2012 photo, failure of a drawdown structure next to the Brown Bridge Dam caused massive flooding and evacuations on the Boardman River south of Traverse City.AP Photo | John L. Russell
TRAVERSE CITY, MI — A group of property owners in northern Michigan have filed a $6.3 million lawsuit alleging the botched removal of a Boardman River dam last fall has lowered their property values and exacerbated recent spring flooding.
The complaint, filed Friday, May 17 in Grand Traverse County Circuit Court, seeks money damages and for a judge to order erosion control measures and cleanup of contaminated sediment deposited on property downstream of the Brown Bridge Dam.
Floodwaters inundated 66 properties down river from the dam after a construction mishap during a removal project in October.
The filing names the City of Traverse City, contractors Molon Excavating and AMEC Engineering, and the Boardman River dam removal project team as defendants.
Plaintiffs include riverfront property owners Phil and Barbara Reneaud, Shelley Wesley, Edna Wilder, David and Pamela Hoyt, and the Boardman Plains Homeowners Association.
In the complaint, attorney Kristyn Houle contends the Hoyts relied on the Brown Bridge Dam — the first of three Boardman River dams to be removed amid a large-scale river restoration project — as a flood-control mechanism.
On Oct. 6, a “temporary dewatering structure” built alongside the dam failed, sending water from the Brown Bridge Pond rushing downstream, raising water levels 5 feet in some areas and threatening area bridges.
The 170-acre pond dropped about 14 feet in roughly six hours after the breach, which is still being investigated by the Michigan Department of Environmental Quality.
According to DEQ officials, enforcement options are still being considered, but one may be eventual referral of findings to the state attorney general’s office.
The suit claims trespass, nuisance, interference with riparian rights, violation of environmental protection laws and gross negligence on part of the city, contractors and project implementation team, and is seeking more than $6.3 million in damages between the group of plaintiffs.
The Hoyts “have spent the past 10 years fixing their home up, sacrificing vacation time, weekends and evenings to invest in their dream home on the Boardman River,” wrote Houle.
“Being on the river was the home’s best feature, now they feel it could be its worst.”
The former Brown Bridge Dam.AP File Photo
The Boardman River Watershed in northern Michigan.
Chuck Lombardo, spokesperson for the Boardman River Dams Settlement Agreement Implementation Team, declined to comment on the lawsuit, “until the legal team has had a chance to review the complaint.”
The Brown Bridge Dam was situated 14 miles upstream from Traverse City. It was built in 1921 as a hydroelectric power generator.
Brown Bridge, as well as the Sabin and Boardman dams — both slated for removal— were decommissioned after the Traverse City Light & Power utility determined in 2006 it was no longer economically feasible to produce hydroelectric power on the Boardman River.
The 28-mile long river flows into West Grand Traverse Bay.
Following almost a decade of feasibility studies, planning and public meetings, the $2.9 million Boardman River restoration project stepped off last year as the largest river-restoration project undertaken in Michigan, and possibly one of the most comprehensive dam removal and restoration projects in the country.
The drawdown of the Brown Bridge Pond did not go as planned, however.
Instead of a gradual draining, pond water began rushing through the dewatering structure the morning of Oct. 6, causing a scramble among crews trying stem the water flow, and evacuations of river residents downstream.
Approximately 5,700 to 7,500 cubic yards of sediment was deposited downstream during the flooding, according to an assessment report prepared by AMEC Engineering and Infrastructure, the project general contractor.
That sediment contained contaminants like arsenic, barium, lead, selenium and zinc. According to the filing, allowing that to wash downstream is a violation of the Michigan Environmental Protection Act.
In the lawsuit, Houle alleges the dam removal project was sped along despite independent concerns raised about flood control downstream.
Use of the failed dewatering structure was a “cheaper and faster” change to the dam removal plan that saved $130,000, Houle wrote.
Flood waters at a home along Garfield Road in Grand Traverse County. Residents in the Boardman River Valley were evacuated when the Brown Bridge Dam dewatering structure failed on Oct. 6, 2012.Courtesy Photo | Erick Tengelitsch
Although the cause of the breach has not officially been determined, the lawsuit suggests a historic 1921 diversion channel located below the where the dewatering structure was built may have contributed to the mishap.
Houle framed he project as “one bad decision after another.”
“By removing the dam, the government has essentially taken an action they knew was going to flood these low-lying downstream property owners,” she said.
“Removal of the dam essentially opened up the whole Kalkaska watershed to the river,” she claimed, and the widespread flooding across the state in April was worse on her plaintiffs due to the dam removal.
Not everybody agrees with that assessment. Boardman River resident John Wyrwastold the Traverse City Record-Eagle in April that “what we are having now is just normal.”
A call to Ben Bifoss, city manager in Traverse City, was not immediately returned.
Lombardo said AMEC, the general contractor, sent a letter of indemnification to the city last year before the dam removal began, assuming some liability for the project.
However Houle said that may not shield the city from all liability. “I don’t see how they could imdenify the city against a ‘taking’ claim,” she said. “AMEC isn’t responsible for that decision.”
Houle said that more parties may be added to the lawsuit.
Zurich North America, insurance company for AMEC, has already settled claims with about 75 percent of the 66 properties affected by the dam removal flooding, said Houle.