A Thirteenth Circuit Court decision halting construction on the new $19.3 million FishPass system at the Union Street Dam in downtown Traverse City means it could be months or even years before the project moves ahead, with the city currently appealing the decision to the Michigan Court of Appeals. As the legal process unfolds, city commissioners must now grapple with whether and when to address dam safety issues that FishPass was intended to correct, with a new state inspection report labeling the dam’s condition as “fair to poor” and calling for its replacement or repair. The report prompted the city to file new paperwork this week asking the court to reconsider hearing the case on an expedited basis based on the dam’s condition.

City commissioners will discuss the inspection report and possible next steps Monday at a 7pm study session. Luke Trumble, a dam safety unit inspector from the Michigan Department of Environment, Great Lakes, and Energy (EGLE), conducted an inspection of the Union Street Dam in late May, recently delivering a report with his findings to the city. According to Trumble, the 154-year-old dam is in fair to poor condition and has a “high hazard potential” rating. Trumble wrote that while there are “no apparent structural deficiencies that may lead to the dam’s immediate failure,” the age of the structure combined with observed deficiencies are “indicators that the dam should be rehabilitated or replaced.”

Trumble cited concerns about the dam’s spillway capacity during flood events, as well as trees along the embankment that are posing “several risks to the dam.” Those risks include piping routes along the tree root systems and the potential of losing an embankment section if a tree falls. “All trees should be removed from the embankments to the abutments,” Trumble wrote. Concrete surfaces are deteriorating at both the primary and auxiliary spillway outlets, and there is “extensive seepage” along the downstream toe of the embankment that will require geotechnical investigations if the dam isn’t soon replaced to “ensure stability and seepage factors of safety under normal and extreme loading conditions.” The report also cites surface erosion in “numerous locations” along the slopes near the dam and the potential of a nearby water main to burst, which could “cause significant erosion of the embankment, potentially impacting stability of the dam.”

The inspector indicated that the city’s plans to construct FishPass – replacing the old earthen dam with a new labyrinth weir and new fish-sorting channel – would address the current safety issues at the site. “The city should press forward with these plans, or if prohibited, pursue further investigations and rehabilitation of the existing structure,” Trumble wrote. While there does not appear to be a risk of immediate collapse, the inspector concluded that “due to the prevalence of seepage, numerous trees, and isolated areas of settlement, the city should pursue further investigations into the stability of the structure if it is not replaced soon.” Trumble listed approximately a dozen significant repairs or investigations the city should undertake at the dam if FishPass is “significantly delayed,” including performing dive and geotechnical inspections, replacing the deteriorated concrete, and removing all trees from the embankments.

How and when the city can actually take any of those actions remains an open question, however. In a Thursday filing with the Michigan Court of Appeals, attorneys for the city and project partner Great Lakes Fishery Commission (GLFC) asked the court to reconsider a June 17 decision denying an expedited appeal in the case. The attorneys noted that the downgraded rating assigned to the Union Street Dam in the new inspection report is the same rating assigned to the Midland dams “prior to their tragic failure in May 2020.” The attorneys argued that the disaster “should have brought heightened awareness and a sense of urgency to critical dam projects.” The attorneys also noted that Judge Thomas Power’s April ruling halting FishPass construction bars any tree cutting on the property. The city is now “placed in the untenable position of being directed by experts at the regulatory agency responsible for dam safety (EGLE) to perform” tree removal that is banned under the current court order, attorneys stated. The legal team concluded the filing by arguing that a “swift resolution of the appeal in time to address the safety and soundness of the dam is imperative.”

Commissioner Brian McGillivary asked to have the inspection report placed on Monday’s agenda for discussion so that commissioners and the public can get an overview of Trumble’s findings, and so commissioners can consider next steps. “I want city residents to know all is not well with the dam,” McGillivary says. “It’s not like we’re replacing a great piece of engineering work. It’s going to need to have some significant issues addressed, and I don’t know how long we can wait if this (court case) drags on or if we go to the voters. There’s still a lot to be decided.”

Depending on whether the court grants an expedited appeal, among the considerations commissioners will have to weigh is whether to expend city funds to repair a site that already has funding lined up to cover its complete replacement. The majority of Fishpass’ $19.3 million budget comes from federal, state, and tribal agencies, with the city contributing $257,000 for the relocation of a water main. According to GLFC, if the city went forward with a dam replacement project that did not include the fish-sorting channel, it would lose its Great Lakes Restoration Initiative funding – approximately 86 percent of project funding. “To achieve the same design without a fish-sorting channel, the city would be responsible for the entire estimated cost of ten million,” according to GLFC.

The city’s financial liability could also significantly increase if commissioners go through a request-for-proposals (RFP) process to hire specialized firms for dive and geotechnical inspections at the dam, in addition to addressing the numerous repairs recommended by the inspection report. McGillivary says he doesn’t “have a good answer yet” on trying to weigh those cost and timing considerations against the possibility of FishPass being resolved through a court decision or public vote.

“We’re in a tough spot,” he says. “Our goal was to see the dam replaced, and it was supposed to start this year. Now it’s a situation where we’re stuck in a holding pattern. We need to talk about this report and next steps. The state gave it the same ranking as the dams that fell in Midland. This is not something the city can sit on its hands about and debate for two to three years. It needs to be addressed.”

City Manager Marty Colburn confirms the city will be “evaluating how to best move forward with a possible structural analysis of the dam and what other possible measures can be taken in light of the ongoing injunction” as it simultaneously pursues relief from the court. “Currently the city staff is working around the dam and monitoring the condition of the dam daily,” he says.

Pictured: The Union Street Dam site prior to FishPass construction (left); rendering of site with FishPass built (right)