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The Commission’s primary concern has been the licensee’s longstanding failure to address the project’s inadequate spillway capacity, which currently is designed to pass only approximately 50 percent of the PMF. Failure of the Edenville dam could result in the loss of human life and the destruction of property and infrastructure.https://www.federalregister.gov/documents/2018/02/26/2018-03821/boyce-hydro-power-llc-order-proposing-revocation-of-license

A stalled low pressure system and frontal boundary across the southern Great Lakes region brought record rainfall to southeast Michigan beginning the morning of May 17, 2020 and continuing into the afternoon hours of May 19, 2020. As a result, several rivers across the region flooded including significant flooding occurring along the Saginaw River and historic flooding along the Tittabawassee River in Midland county. The heavy rain in the Tri-Cities region resulted in the catastrophic failures of the Edenville and Sanford dams northwest of the city of Midland, resulting in the issuance of rare Flash Flood Emergencies for record-breaking flooding along the Tittabawassee River that resulted in several structures and roads flooded, and the evacuation of at 10,000 residents of the city of Midland. The heavy rain also resulted in several road closures across the rest of the region as well. In addition to the heavy rainfall, a tight pressure gradient resulting from the area of low pressure further exacerbated already high Great Lakes water levels and enabled strong east to northeast winds to produce significant lakeshore flooding along the shorelines of Lake Huron (particularly Saginaw Bay), Lake St. Clair, and western Lake Erie. Significant river flooding once again occurred along the St. Clair River as well in portions of Macomb and St. Clair counties. While a stalled low pressure system bringing soaking rainfall often occurs at least once or twice during the spring months in the vicinity of southeast Michigan, the combination of heavy rainfall, significant lakeshore and river flooding, and the resultant dam failures in Midland county make this event historically significant“. https://www.weather.gov/dtx/HistoricFlooding-May-17-20-2020

Extremely dangerous flooding is ongoing along the Tittabawassee River in Midland County due to catastrophic failures at the Edenville and Sanford dams. Flood Warnings are in effect, and anyone near the river should seek higher ground immediately, avoid driving into flood waters, and continue to heed evacuation orders given by local authorities. Life-threatening flooding continues today. While remaining in significant flood, river levels should slowly begin to fall between Edenville and Sanford today. The river should crest at Midland this afternoon or evening at record levels with significant flooding continuing in the city. River levels will continue to rise, but more gradually, through tonight downstream of Midland as the runoff continues to work its way toward the Saginaw Riverhttps://www.weather.gov/dtx/weatherstory

Dow Chemical’s main facility is along the river in Midland.

The owner of Boyce Hydro is apparently named Lee Mueller: http://archive.vn/0a2YJ
Boyce Hydro acquired the Edenville dam in 2004. It was rated as in unsatisfactory condition by the state 2018. It also owns another dam that failed, the Sanford dam, which was rated in fair condition… In the next 12 to 15 hours, downtown Midland could be under approximately 9ft of water,” the governor said during a late Tuesday briefing… John Rumpler, an attorney who directs the advocacy group Environment America’s clean water campaign… said “we have every reason to be concerned that there could be a spread of toxic substances in and around Midland and downstream from there”” See: “Michigan: thousands evacuated after ‘catastrophic’ dam failures: Governor says town of Midland could soon be under 9ft of water while one of the dams had been under federal scrutiny since 1999, by Emily Holden https://www.theguardian.com/us-news/2020/may/20/michigan-dams-break-thousands-evacuated-floods

ABC News described Mueller as a “co-owner”, in this strangely worded sentence: “Edenville Dam and three others along the Tittabwassee River are owned by Boyce Hydro, whose co-owner, Lee Mueller, was not available for comment.” See: http://archive.vn/RSgVD

Environment America report:
Accidents waiting to happen” by Weissman and Rumpler: https://environmentamerica.org/sites/environment/files/reports/WEB_AME_Accidents-Report-Jan19.pdf

Dow Chemical in Midland: Flood water mixed with our containment ponds” by Keith Matheny, Detroit Free PressPublished 1:54 p.m. ET May 20, 2020 | Updated 2:24 p.m. ET May 20, 2020 http://archive.vn/dTxQC

Former Dow Chemical Co. managing counsel Peter C. Wright received the Senate’s approval July 11 to head the EPA’s Superfund and waste programs“.https://news.bloomberglaw.com/environment-and-energy/senate-confirms-ex-corporate-lawyer-to-head-epas-waste-programs

Thursday, July 11, 2019
WASHINGTON, D.C. – Immediately before Senate Republicans voted to confirm Trump Administration nominee Peter Wright, a former Dow Chemical lawyer, to oversee the Environmental Protection Agency’s (EPA) toxic chemical cleanup program, Senator Bob Menendez criticized the appointment of this self-described “dioxin lawyer” who built his career at Dow “by misrepresenting science, downplaying threats to public health, and undermining cleanups.”… Instead he did just the opposite. Consider Dow’s Midland site in Michigan, where more than a century of producing things like Styrofoam, Agent Orange, and mustard gas left rivers contaminated for more than 50 MILES. As Dow’s self-styled “Dioxin Lawyer,” Mr. Wright points to the Midland site as one of his greatest achievements.  But a New York Times investigation from last year tells a different story. It found that under Mr. Wright’s watch, Dow was accused of ‘submitting disputed data, misrepresenting scientific evidence, and delaying cleanup.’….
https://www.menendez.senate.gov/news-and-events/press/menendez-blasts-trumps-toxic-nominee-to-oversee-chemical-cleanup-program-

https://miningawareness.wordpress.com/2020/05/20/trump-appointed-former-dow-chemical-lawyer-peter-wright-to-oversee-epa-superfund-toxic-chemical-cleanup-program/

The Dow Chemical Company facility in Midland, Michigan, began operating in 1897. The 1,900-acre facility abuts the Tittabawassee River; most of the plant is located on the east side of the river and south of the city of Midland. At various times, the Midland Plant produced over 1,000 different organic and inorganic chemicals. Dioxins and furans were byproducts formed during the manufacture of chlorine-based products, starting in the early 1900s. Elevated dioxin levels in and along the Tittabawassee River and downstream appear to be primarily attributable to particles in liquid wastes that were discharged in the past directly into the river from the facility.

Past waste disposal practices at the Midland Plant have resulted in on and off-site contamination that settled in some sediment and built up in some riverbanks and floodplain areas. Off-site contamination extends over 50 miles downstream through the Tittabawassee and Saginaw Rivers and into Saginaw Bay.

What Has Been Done to Clean Up the Site?
EPA selected cleanups have been underway for several years. Dow is implementing these actions with EPA oversight. To manage the cleanups, EPA divided the Tittabawassee River into seven segments ranging in length from three to four miles. Work is being done in stages from upstream to downstream, segment by segment. Cleanups target specific areas in each segment called Sediment Management Areas, or SMAs, and Bank Management Areas, or BMAs…
https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.Cleanup&id=0503250#bkground

National Weather Service Detroit/Pontiac MI
1218 PM EDT Wed May 20 2020
Midland MI-
1218 PM EDT Wed May 20 2020
At 1210 PM EDT, emergency management reports continued significant
flooding due to multiple dam failures along the Tittabawassee River
from Wixom Lake and Edenville southward through Sanford to Midland…
The river shouldcrest at Midland this afternoon or evening at record levels most
likely somewhere between 35 and 36 feet with significant flooding
continuing in the city. River levels will continue to rise, but more
gradually, through tonight downstream of Midland as the runoff
continues to work its way toward the Saginaw River. Locations that will experience flooding include… Midland, Sanford, Edenville, Hope and Averill.

https://forecast.weather.gov/showsigwx.php?warnzone=MIZ047&warncounty=MIC111&firewxzone=MIZ047&local_place1=Midland%20MI&product1=Flood+Warning&lat=43.6236&lon=-84.2294

It’s unclear if the Government was unwilling or unable to force compliance by Boyce Hydro.

Boyce Hydro Power, LLC; Order Proposing Revocation of License
A Notice by the Federal Energy Regulatory Commission on 02/26/2018
* 
DOCUMENT DETAILS
Printed version:
Publication Date:
02/26/2018
Agencies:
Federal Energy Regulatory Commission
Document Type:
Notice
Document Citation:
83 FR 8253
Page:
8253-8255 (3 pages)
Agency/Docket Number:
Project No. 10808-058
Document Number:
2018-03821
DOCUMENT DETAILS
DOCUMENT STATISTICS
Page views:
1,201
as of 05/20/2020 at 12:15 pm EDT
DOCUMENT STATISTICS
PUBLISHED DOCUMENT

Start Printed Page 8253
1. Boyce Hydro Power, LLC (Boyce Hydro or licensee) is in violation of numerous provisions of its license for the Edenville Hydroelectric Project No. 10808 (Edenville Project), the Federal Power Act (FPA), and multiple Commission regulations and orders, including a Compliance Order issued pursuant to section 31(a) of the Federal Power Act.[1] As discussed below, the Commission proposes to revoke the license pursuant to section 31(b) of the FPA.

I. Background

2. On October 16, 1998, the Commission issued a license for the Edenville Project, a 4.8-megawatt (MW) hydroelectric project located in Gladwin and Midland counties, Michigan.[2] The Edenville Project consists of earthen embankments, known as the Edenville dam, totaling about 6,600 feet in length and having a maximum height of 54.5 feet. It spans both the Tittabawassee and Tobacco Rivers, creating a 2,600-acre reservoir known as Wixom Lake with a gross storage capacity of about 40,000 acre-feet and a 49-mile-long shoreline at full pool. There is a 50-foot-long intake leading to the powerhouse located at the dam on the eastern side of the project. The powerhouse contains two 2.4-MW Francis-type turbine generator units for a total installed capacity of 4.8 MW. The project creates a 0.4-mile-long bypassed reach on the Tobacco River that extends from the dam to the point where the Tobacco River meets the Tittabawassee River. The project also includes two reinforced concrete multiple arch spillways. The 69-foot-wide, 39-foot-high Tittabawassee spillway (also referred to as the Edenville spillway) is located on the eastern side of the project and contains three Tainter gates and two low-level sluice gates. The Tobacco spillway is about 72 feet long and 72 feet wide with a crest height of about 40 feet, and contains three steel Tainter gates located on the western side of the project.

3. Boyce Hydro’s license includes terms and conditions concerning dam safety, property rights, water quality, public recreation and safety, and other areas of public concern. Boyce Hydro has a long history of non-compliance with those terms and conditions and with related provisions in the FPA and Commission regulations and orders. The Compliance Order, which was issued pursuant to section 31 of the FPA on June 15, 2017, detailed this history and staff’s multi-year effort to bring Boyce Hydro into compliance.[3] In particular, the Compliance Order explained that Boyce Hydro:
(1) Failed to increase the capacity of spillways to enable them to pass the probable maximum flood (PMF) as required by Regional Engineer directives, license Article 4, and Part 12 of the Commission’s regulations; [4]
(2) performed unauthorized dam repairs in violation of Regional Engineer directives and Part 12 of the Commission’s regulations; [5]
(3) performed unauthorized earth-moving activities in violation of Standard Articles 19-21 of the license; [6]
(4) failed to file an adequate Public Safety Plan in violation of Regional Engineer directives and Part 12 of the Commission’s regulations; [7]
(5) unduly restricted public access to project facilities and failed to construct approved recreation facilities in violation of Standard Article 18 and Article 410 of the license and the Commission’s Orders Modifying and Approving Recreation Plan; [8]
(6) failed to acquire and document all necessary project property rights in violation of Standard Article 5 of the license; [9] and
(7) failed to comply with the Commission’s 1999 Order approving Boyce Hydro’s Water Quality Monitoring Plan in violation of that order and Article 402 of the license.[10]

The Commission’s primary concern has been the licensee’s longstanding failure to address the project’s inadequate spillway capacity, which currently is designed to pass only approximately 50 percent of the PMF. Failure of the Edenville dam could result in the loss of human life and the destruction of property and infrastructure.

4. Ordering Paragraphs (A) through (M) of the Compliance Order required Boyce Hydro to provide specific plans, specifications, reports and other information to address the violations identified in that order and to come into compliance with the Commission’s regulations and the terms of its license. On July 14, 2017, and July 27, 2017, the licensee filed two requests for more time to comply with certain requirements in the Compliance Order. By orders issued July 25, 2017, and August 15, 2017, the extensions that the licensee requested were granted, with the exception of one portion of the second requested extension, which the order determined could be completed in the time provided in the first extension without the need for a second.[11] Those extensions were granted based on representations made by the licensee and its counsel regarding steps that the licensee was taking to satisfy the requirements of the Compliance Order.

5. Boyce Hydro failed to comply with obligations set out in each of the ordering paragraphs in the Compliance Order, except for the obligations to acquire and document certain property rights (although the lack of designs for the new and revised spillways makes it difficult to determine if it has acquired all necessary property rights) [12] and to implement certain requirements in the project’s approved Water Quality Monitoring Plan.

6. Boyce Hydro violated the following ordering paragraphs in the Compliance Order and associated orders extending time:
* Ordering paragraph (B) directed: For the Tobacco River Auxiliary Spillway: By July 15, 2017 (extended to September 18, 2017), the licensee was required to file a complete design 
Start Printed Page 8254

package with the Commission’s Division of Dam Safety and Inspection, Chicago Regional Engineer (Regional Engineer) for a Tobacco River Auxiliary Spillway. The design package must fully address all items noted in the Regional Engineer’s letter to the licensee dated June 6, 2016.
* Ordering paragraph (D) directed: For the Tittabawassee River Auxiliary Spillway: By August 14, 2017 (extended to November 14, 2017), the licensee was required to file with the Regional Engineer, plans, specifications, and a schedule to construct a Tittabawassee River Auxiliary Spillway.
* Ordering paragraph (F) directed: By October 13, 2017 (extended to November 14, 2017), the licensee was required to file with the Regional Engineer, a plan and schedule for additional modifications to the project to meet the full (100%) Probable Maximum Flood.
* Ordering paragraph (G) directed: By July 30, 2017 (extended to September 30, 2017), the licensee was required to file with the Regional Engineer, complete plans and specifications for permanent repairs to both left and right Tobacco River abutment spillway walls, a complete work schedule, detailed drawings, a water management plan, an erosion control plan, a Temporary Construction Emergency Action Plan, and a Quality Control Inspection Program as originally specified in the Regional Engineer’s letter to the licensee issued December 8, 2016.
* Ordering paragraph (J) directed: By September 13, 2017, the licensee was required to provide reasonable access to project lands and waters for the public and to file documentation that such access has been provided. The licensee’s documentation must include photographs showing that gates restricting access to parking and fishing areas are open, that fencing blocking access to recreation features has been removed, and that reasonable access to the water is allowed. The licensee’s documentation must also include a statement from the licensee affirming its compliance with the access provisions of Article 18.
* Ordering paragraph (K) directed: By September 13, 2017, the licensee was required to file with the Regional Engineer, a complete design package for construction of all recreation facilities required by the project’s approved Recreation Plan. The approved recreation facilities for the Tittabawassee side include: A parking lot for 15 cars off of State Highway 30, a parking lot with two handicapped spaces, a barrier-free restroom, a railed handicapped-accessible fishing pier next to the powerhouse, two canoe portages, access paths, and signs that identify the recreation facilities. The approved recreation facilities for the Tobacco side include: A parking lot for 15 cars off of State Highway 30, an access path, stairs to a railed fishing pier, and signs that identify the recreation facilities. Within 90 days of completing this work, the licensee must file documentation including as-built drawings and photographs demonstrating that the recreation facilities in the approved Recreation Plan have been constructed.
7. Boyce Hydro failed to make the filings required by ordering paragraphs (B), (D), (F), (G), (J), and (K) of the Compliance Order. It claims to have started the process of preparing the design package for the Tobacco River Auxiliary Spillway that was required by Ordering Paragraph (B), but it requested an additional four to five-month extension to complete that design package.[13] And that is only the design of the Tobacco River Auxiliary Spillway—Boyce Hydro claims that it lacks the funds to actually construct the spillway and will need to save money over some unspecified period of time (and resolve outstanding state permitting issues) before it can start construction.[14] Of course, this addresses just one of the two auxiliary spillways it must design and construct and does not include the other modifications that it will need to make to satisfy PMF requirements and/or to satisfy its obligations under the Compliance Order.
8. Boyce Hydro did not seek rehearing of the Compliance Order, and it has admitted that it failed to meet the obligations imposed by that order.[15] It remains in violation of its license, the FPA, and Commission regulations and orders.[16]

II. Discussion

9. Under section 31(b) of the FPA,[17] after providing notice and an opportunity for an evidentiary hearing, we may issue an order revoking a license if we find that the licensee knowingly violated a final compliance order and was given a reasonable time to comply with that order before the revocation proceeding was commenced.[18] In addition, section 31(b) provides that the Compliance Order shall be subject to de novo review and that the Commission shall consider the nature and seriousness of the violation and the licensee’s efforts to remedy the violation.

10. This order provides notice that we propose to revoke the license for the Edenville Project No. 10808 under section 31(b). As explained in the Compliance Order, Boyce Hydro has failed for many years to comply with significant license and safety requirements, notwithstanding having been given opportunities to come into compliance. The Compliance Order set out specific parameters for Boyce Hydro to achieve compliance with its license. The licensee failed to meet nearly all the obligations in the Compliance Order, even after Commission staff granted multiple extensions.[19] Thus, based on the record, there is no reason to believe that the licensee intends to come into compliance. We conclude that it has been given a reasonable time to comply with the Compliance Order and considering the serious dam safety issues [20] and lack of demonstrated effort
Start Printed Page 8255
by Boyce Hydro to comply with the Compliance Order, we propose revocation of the project license.[21]

11. The licensee may request an evidentiary hearing before an Administrative Law Judge within 30 days of this issuance date of this order.[22] If, within 30 days, the licensee requests a hearing, the Commission will set the matter for hearing. If the licensee does not request a hearing, the Commission will decide this matter based on the written record. Any interested person may file a motion to intervene in accordance with the requirements of the Commission’s Rules of Practice and Procedure (18 CFR 385.214). A person does not have to intervene in order to have comments considered. Any person may file with the Secretary of the Commission, comments in support of or in opposition to the proposed revocation. The Commission will consider these comments in determining the appropriate action to be taken, but the filing of a comment alone will not serve to make the filer a party to the proceeding.

The Commission Orders
(A) Pursuant to section 31(b) of the FPA, 16 U.S.C. 823b(b) (2012), the Commission proposes to revoke the license for the Edenville Project No. 10808.
(B) Boyce Hydro may request an evidentiary hearing within 30 days of the issuance date of this order.
By the Commission.
Issued February 15, 2018.
Kimberly D. Bose,
Secretary.
Footnotes
1.  Boyce Hydro Power, LLC, 159 FERC 62,292 (2017) (Compliance Order).
2.  Wolverine Power Corporation, 85 FERC 61,063 (1998). The license was transferred from Wolverine Power Corporation to Synex Michigan, LLC on June 23, 2004. See Wolverine Power Corporation and Synex Michigan, LLC,107 FERC 62,266 (2004). Synex Michigan, LLC changed its name to Boyce Hydro Power, LLC, and filed a statement with the Commission on July 12, 2007, to this effect. See Notice of Change in Licensee’s Name (filed July 12, 2007).
3.  Boyce Hydro Power, LLC, 159 FERC 62,292 (2017) (Compliance Order).
4.  See Compliance Order, at PP 5-26.
5.  See id. PP 35-46.
6.  See id. PP 54-76.
Back to Citation
7.  See id. PP 84-86.
8.  See id. PP 92-107 (identifying, among others, violations of Wolverine Power Corporation, 96 FERC 62,055 (2001) and Synex Michigan, LLC, (Dec. 5, 2006) (unpublished order)).
9.  See id. PP 116-124.
10.  See id. PP 134-141.
11.  The first order granted an additional 30 days to comply with the requirements in ordering paragraphs (B), (C), (D), (E), (F), and (G) of the Compliance Order. The second order granted more time to comply with ordering paragraphs (B), (G), and (D), but denied more time for complying with ordering paragraph (F).
12.  In filings made with the Commission on July 26, 2017, August 22, 2017, and January 22, 2018, Boyce Hydro states that it possesses the necessary property rights over the land within the project boundary and that it has acquired rights to land (and has ability to acquire rights to additional land) that may be necessary to complete construction of the Tobacco River Auxiliary Spillway. However, because the licensee has not provided plans and specifications for the Tittabawassee Auxiliary Spillway or provided other documentation specific to where the Tittabawassee Auxiliary Spillway will be constructed, Commission staff is still uncertain if the licensee has, in fact, obtained rights to all land necessary for the construction of the Tittabawassee Auxiliary Spillway, as required by the Compliance Order.
13.  See, e.g., Boyce Hydro Power, LLC, Docket Nos. P-10808-047 & -053, at 8-9 (Dec. 1, 2017).
14.  See id. at 9-10.
15.  See id. at 8-15 (admitting, among other things, Boyce Hydro’s failure to comply with Ordering Paragraphs (B), (D), (F), (G), (J), and (K) of the Compliance Order and requesting further extensions and/or a stay of those obligations).
16.  On November 20, 2017, Commission staff issued an order requiring Boyce Hydro to cease generating at the Edenville Project, and Boyce Hydro filed a timely request for rehearing of that order. Concurrent with this Order Proposing Revocation, we are issuing an order denying rehearing of the Cease Generation Order.
17.  See 16 U.S.C. 823b(b) (2012). Section 31(b) provides that after notice and an opportunity for an evidentiary hearing, the Commission may issue an order revoking a license, where the licensee is found by the Commission to have knowingly violated a final order and has been given reasonable time to comply fully with that order.
18.  See e.g. Eastern Hydroelectric Corp., 149 FERC 61,036 (2014), reh’g denied,150 FERC 61,099 (2015) (revoking license for failure to construct a required fish passage); Virginia Hydrogeneration and Historical Society, L.C., 104 FERC 61,282 (2003) (proposing revocation of license for failure to comply with environmental conditions); Energy Alternatives of North America, Inc., 68 FERC ¶ 61,196 (1994) (proposing revocation of the license for failure to comply with public safety requirements).
19.  Boyce Hydro’s offer to place 50 percent of gross revenues from the Edenville Project into escrow until it has saved enough money to construct the Tobacco River Auxiliary Spillway does not convince us that it will satisfy its obligations under the Compliance Order if we grant another extension. Boyce Hydro has not provided any estimate of when it will complete construction of that spillway, let alone when it can complete and submit the designs for the other auxiliary spillway and satisfy the other obligations set out in the Compliance Order.
20.  Public safety would not be affected by revoking the license. Should the Commission ultimately revoke Boyce Hydro’s license, the Commission’s jurisdiction will end, and authority over the site will pass to the State of Michigan’s dam regulatory authorities. See Mich. Comp. Laws 324.31506 (giving the Michigan Department of Environmental Quality regulatory authority over dams and impoundments in the state); see also Eastern Hydroelectric Corp., 149 FERC 61,036 at P 35 (noting that upon revocation the authority to regulate dam safety and other issues related to the dam and impoundment would transfer to the state).
21.  Revocation of the Edenville Project license does not mandate removal or any modification of the dam. While, the Commission has broad authority to fashion appropriate remedies to further the goals of the FPA in a manner that is necessary and appropriate to carry out the revocation of this license, as a general rule, we do not condition the effectiveness of a license revocation by imposing additional requirements on a licensee that has shown its unwillingness to comply with other Commission orders. Eastern Hydroelectric Corp., 149 FERC 61,036 at P 33 (declining request to order removal of all project facilities including the dam and instead only requiring licensee to disable all of the project’s generating equipment to prevent operation of the project).
22.  See 16 U.S.C. 823b(b) (2012). https://www.federalregister.gov/documents/2018/02/26/2018-03821/boyce-hydro-power-llc-order-proposing-revocation-of-license#citation-22-p8255
[FR Doc. 2018-03821 Filed 2-23-18; 8:45 am]
BILLING CODE 6717-01-P
PUBLISHED DOCUMENT
https://www.federalregister.gov/documents/2018/02/26/2018-03821/boyce-hydro-power-llc-order-proposing-revocation-of-license
*
2015 document: https://www.ferc.gov/whats-new/comm-meet/2015/021915/H-1.pdf

* Excerpt from court case: https://ferc.gov/legal/court-cases/briefs/2018/DC171-1270BoyceHydroPowerMotion.pdf
*”ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED
*
* IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
*
* Boyce Hydro Power, LLC, ) ) Petitioner, ) ) v. ) No. 17-1270 ) Federal Energy Regulatory Commission, ) ) Respondent. )
*
* RESPONSE OF FEDERAL ENERGY REGULATORY COMMISSION IN OPPOSITION TO EMERGENCY MOTION OF BOYCE HYDRO POWER, LLC TO STAY ORDER

*
* Pursuant to Rule 27 of the Federal Rules of Appellate Procedure and Circuit
* Rule 27, Respondent Federal Energy Regulatory Commission (“Commission” or
* “FERC”) submits its response in opposition to the Emergency Motion (“Motion”)
* that Petitioner Boyce Hydro Power, LLC (“Boyce Hydro”) filed on December 20,
* 2017, requesting a stay of a FERC order pending final agency action and judicial
* review.
*
* On January 5, 2018, the Commission issued an order on Boyce Hydro’s
* similar request to the agency, seeking an administrative stay of the November 20,
* 2017 FERC order that required Boyce Hydro to cease generation at the Edenville
* Project in central Michigan. See Order On Stay, Boyce Hydro Power, LLC, 162
* FERC ¶ 61,007 (Jan. 5, 2018) (“January 2018 Order”) (Attachment A hereto);
* Order to Cease Generation, Boyce Hydro Power, LLC, 161 FERC ¶ 62,119 (Nov.
* 20, 2017) (“November 2017 Order”) (Attachment B hereto). The Commission
* denied Boyce Hydro’s request for a permanent stay, but granted a temporary stay
* until March 1, 2018, unless extended by the Commission’s Office of Energy
* Projects, Division of Dam Safety and Inspection, Chicago Regional Engineer,
* based on ice conditions….
” See the rest here: https://ferc.gov/legal/court-cases/briefs/2018/DC171-1270BoyceHydroPowerMotion.pdf

Those using the lake didn’t want to pay for the use, and the dam owner didn’t want to pay, either:
Sanford Lake Dam owner says he’s not paying for $83,000 repair project” Updated Jan 21, 2019; Posted Jan 28, 2011 http://archive.vn/0a2YJ

Flood Warning
Flood Statement
National Weather Service Detroit/Pontiac MI
1218 PM EDT Wed May 20 2020

MIC111-211100-
/O.CON.KDTX.FA.W.0005.000000T0000Z-200521T1100Z/
/00000.0.MC.000000T0000Z.000000T0000Z.000000T0000Z.OO/
Midland MI-
1218 PM EDT Wed May 20 2020

…A FLOOD WARNING REMAINS IN EFFECT UNTIL 700 AM EDT THURSDAY FOR
NORTHEASTERN MIDLAND COUNTY…

At 1210 PM EDT, emergency management reports continued significant
flooding due to multiple dam failures along the Tittabawassee River
from Wixom Lake and Edenville southward through Sanford to Midland.

The gauge site for the Tittabawassee River at Midland has reached 35
feet early this afternoon with the rise now slowing significantly
over the past several hours. This level is over one foot higher than
the previous record level of 33.89 feet.

While remaining in significant flood, river levels should slowly
begin to fall between Edenville and Sanford today. The river should
crest at Midland this afternoon or evening at record levels most
likely somewhere between 35 and 36 feet with significant flooding
continuing in the city. River levels will continue to rise, but more
gradually, through tonight downstream of Midland as the runoff
continues to work its way toward the Saginaw River.

Locations that will experience flooding include… Midland, Sanford,
Edenville, Hope and Averill.

PRECAUTIONARY/PREPAREDNESS ACTIONS…

Follow evacuation instructions provided by your local emergency
officials as river levels remain extremely high. Do not attempt to
drive across flooded roadways. Please continue to heed any remaining
road closures as well..

A Flood Warning means that flooding is imminent or occurring. All
interested parties should take necessary precautions immediately.

&&

LAT…LON 4381 8444 4381 8437 4382 8436 4382 8434
4369 8433 4361 8417 4350 8417 4365 8444

$$

DG

Flood Warning
FLOOD STATEMENT
NATIONAL WEATHER SERVICE DETROIT/PONTIAC MI
1023 AM EDT Wed May 20 2020

…A FLOOD WARNING CONTINUES FOR THE FOLLOWING…

Tittabawassee River

.Though the recent rise in the river seems to be
slowing, there is concern that there is still
large enough volume of water from recent runoff
and from the multiple dam failures and breaches
upstream to continue the current record flood
forecast at Midland. With daylight and as more
information comes in about the situation,
the forecast will be adjusted accordingly.

MIC111-145-210424-
/O.CON.KDTX.FL.W.0017.000000T0000Z-200523T0352Z/
/MIDM4.3.ER.200519T0138Z.200521T0000Z.200522T2152Z.NR/
1023 AM EDT Wed May 20 2020

A flood warning continues for
Tittabawassee River from Midland downstream into Saginaw.
* From now until further notice.
* At 10 AM Wednesday the stage is 34.9 feet and rising.
* Flood stage is 24.0 feet.
* Record flooding is occurring.
* Forecast is to crest around 38.0 feet this evening.

&&

LAT…LON 4366 8438 4367 8432 4362 8421 4344 8398
4341 8401 4360 8427

$$

PRECAUTIONARY/PREPAREDNESS ACTIONS…

Safety message…TURN AROUND..DON`T DROWN!

&&

DRChttps://forecast.weather.gov/showsigwx.php?warnzone=MIZ047&warncounty=MIC111&firewxzone=MIZ047&local_place1=Midland%20MI&product1=Flood+Warning&lat=43.6236&lon=-84.2294