Finally a Dam Decision on Argo?

Of possible interest to commenters on this article is this announcement by the city’s director of community services, Jayne Miller, at yesterday evening’s [June 1, 2009] city council: The June 15 council meeting will be preceded by a work session on the Argo dam issue. That work session is scheduled for 6-7 p.m.

Miller also indicated that council’s formal public hearing on the Argo dam issue is currently planned for July 6, 2009 [emphasis added].

At its June 15 work session, the city council opted to ask the Michigan Department of Environmental Quality for additional time to decide the fate of Argo Dam, so the public hearing and vote were put off. In early August the MDEQ gave the city of Ann Arbor a response to its request for more time: Close the headrace and dewater it by November. In September, city staff developed a plan to respond – which included the possibility of contesting the MDEQ order, something that’s now begun, with the law firm Bodman engaged by the city as legal counsel.

The earthen embankment at Argo sloping upward from left to right. The river is to the left; the headrace waters held back by the embankment are to the right. (Photo by the writer)

Older History and Background

Before diving in to developments of the last month or so, it’s worth reviewing very briefly how the city came to this point. Where did the idea come from to remove the dam, and who wants it to stay? The possibility of removing the dam has been attached historically to maintenance issues associated with the earthen berm adjacent to the concrete and steel structure, both of which the MDEQ subsumes under the term “Argo Dam.” [For the sake of coherent discourse, it's worth maintaining a distinction between "earthen berm" and "concrete and steel structure" when only one of those is intended.]

The idea of removing Argo Dam and returning the section of the Huron River between Barton Dam and Geddes Dam to a more natural riverine state has been supported by the Michigan Department of Natural Resources on grounds of water quality and quality of the fishery. Locally, the Huron River Watershed Council has supported removal of Argo Dam for environmental reasons.

If around $300,000 needed to be invested in the repair of toe drains in the earthen embankment, the thought was: Why not contemplate the removal of Argo Dam to avoid any future maintenance costs, plus reap environmental benefits? But that view was challenged. In addition to disputing the merits of the environmental arguments, local opposition also focused on the benefit of Argo Pond to the rowing community – high school and college teams, as well as individual rowers, use the pond heavily.

As Sunday’s night’s caucus demonstrated, however, opposition to the removal of Argo Dam is not limited to the rowing community. Mark Hodesh, owner of Downtown Home & Garden, also appeared at caucus to oppose the dam’s removal: “I really like that pond!” he said. Hodesh recalled that his parents took him to swim there in the ’40s and ’50s and that it served as a northern gateway to the city.

A timeline on Argo Dam from previous Chronicle coverage: “MDEQ to Ann Arbor: Close  Argo Millrace“:

• 2001 Inspection report from MDEQ notes problem with toe drains in earthen embankment.
• Nov. 18, 2004 A letter from the MDEQ references the 2001 inspection report that first pointed out problems with toe drains: “The inspection report for the Argo Dam identifies problems that may threaten its safety. Specifically, the toe drains along the downstream side of the raceway canal embankment are failing. The toe drain failure is complicated by the dense growth of trees and brush on the raceway embankment and by the inability to block the flow of water into the raceway during an emergency. The toe drain system should be repaired immediately, and a means of blocking flow into the raceway canal should be devised as soon as possible.”
• March 2006 The city’s Environmental Commission creates the Huron River and Impoundment Management Plan (HRIMP) committee
• Sept. 12, 2007 The assessment of the dam’s condition and recommendations in the dam safety report includes: “The principal spillway and main embankment of the Argo Dam are in good condition. However, the headrace embankment is in poor condition. The dam has adequate spillway capacity to pass the design flood. The following recommended actions are listed by priority. (1.) Submit a copy of the contingency plan to block off flow from the millrace by February 29, 2008. (2.) Remove overhanging and dead trees from the headrace embankment by July 31, 2008. …”
• Dec. 26, 2007 A letter from the DEQ includes the following: “The headrace embankment of the Argo Dam is in poor condition, and the toe drains are not totally functional. This has been described in past reports, and you have received a permit to perform repairs to the toe drain system. It is our understanding that this work has not been done yet, and discussion is ongoing regarding the future disposition of the dam.”
• March 24, 2008 A letter from the DEQ includes the following: “One of the recommendations of this report was that a contingency plan be developed to rapidly shut off flow to the headrace in the event of concerns over the headrace. You provide this contingency plan to this office in your letter of February 21, 2008. The contingency plan lacks detail on how an actual or impending failure of the headrace embankment would be determined. … [P]lease be reminded that this headrace contingency plan is intended to be a short term plan to alleviate potential impacts caused by a headrace embankment failure. It does not address the significant structural concerns with the headrace embankment.”
• January-February 2009 City staff conduct a series of public meetings. [Chronicle coverage of a public meeting at Forsythe Middle School.]
• April 28, 2009 The final version of HRIMP report is finished. Key conclusion: “The decision at the Argo area comes down to one of community preference. Both options will require significant investment of capital and operation and maintenance dollars in addition to staff time.”
• May 19, 2009 The city’s Park Advisory Commission recommends on a narrow 1-vote margin to retain the Argo Dam. [Chronicle coverage of PAC Argo Dam discussion.]
• May 28, 2009 The city’s Environmental Commission recommends removal of the dam. [Chronicle coverage of EC Argo Dam discussion.]
• June 15, 2009 At a work session conducted by the city council, the apparent consensus was that staff should be directed to identify questions that would need to be studied for dam-in and dam-out scenarios and to ask DEQ for additional time.
• July 16, 2009 Ann Arbor sends a letter to MDEQ outlining specific areas of study for the dam-in and dam-out options, and asks for an extension of the deadline until April 2010.
• Aug. 6, 2009 MDEQ sends a letter in reply granting the extension, but ordering the closure and dewatering of the headrace.

Additional Chronicle coverage: “Huron River of Data” and “Dam Questions Dominate Caucus.”

More Recent History: Ann Arbor’s Response to the MDEQ

At their Sept. 8 regular meeting, the city council received an update from city staff on their planned strategy for responding to the MDEQ order, which includes closing the headrace, dewatering it, and making a decision on the dam-in/dam-out question by spring 2010. There’s a December 2010 deadline for repairs if the city makes a dam-in decision, or a December 2012 deadline for removal if the city opts for dam-out.

During her Sept. 8 update, Sue McCormick, director of public services, conveyed a fairly defensive posture with respect to the MDEQ order. The MDEQ had, she said, inappropriately conflated two separate issues: (i) the technical issues with respect to public safety, and (ii) the longer-term fate of the Argo Dam. She cast doubt on the urgency with which the toe drains needed repair, saying that of the 30 toe drains, the 10 that were visible were in good shape.

In her briefing, McCormick said that city staff intended to request a meeting with the MDEQ to resolve the technical issues in dispute, and if they were not able to convince the MDEQ to revise its order, they planned to file a contested case – which is a formal appeal.

The city has now submitted at least the initial filings for that appeal and has retained Bodman as legal counsel for that purpose.

Schematic provided by Joe O'Neal, whose construction company built the concrete and steel dam, showing a possibility for a redesign of the headrace embankment. Christopher Taylor (Ward 3) is expected to suggest amendments to the Argo Dam resolution that would explicitly mention the possibility of a redesigned embankment that would eliminate the need for a portage. (Image links to higher resolution file)

One of the ways that McCormick said they hoped to convince the MDEQ that the earthen berm was not in danger of failing due to the toe drains was to ask Stantec – an engineering firm that the city uses for support services – to install piezometers (test wells) on the berm to measure the water pressures at a cost of around $20,000. [City council will be considering a resolution on Monday to award a professional services contract in the amount of $250,000 to Stantec to cover a wide range of future services.] Key would be to convince the MDEQ to consider any data from the piezometers as relevant to the technical discussion.

On Sept. 17, the city began installing piezometers. [Chronicle Stopped.Watched item: "Argo"]

The city’s webpage on Argo Dam chronicles the outcome of those initial meetings with the MDEQ, which took place Sept. 24, 2009. Salient in that report is the MDEQ’s agreement with the city’s position that if the condition of the toe drains could be addressed through some other means – like a redesign of the berm to give a continuous flow for canoeists down the headrace, eliminating the portage – then no timeline for a dam-in/dam-out decision needed to be enforced:

MDEQ indicated that they included item #4 in the order (item #4 says removal must be complete by 2012) as recognition that in the event the City chooses dam removal as the alternative offered to address the embankment deficiency, they wanted a date certain for dam removal to occur. MDEQ agreed that if the deficiency is addressed in another manner, there is no deadline for a decision on dam removal or any subsequent required schedule for dam removal [emphasis added].

Why a Decision Now?

At Sunday’s caucus, Stephen Rapundalo (Ward 2), who is one of three sponsors of the resolution to be considered on Monday night, defended the Friday addition of the Argo Dam item as within the council’s protocols. In response to the suggestion that some other councilmembers might not have known about the resolution, he cited the late addition of a resolution to appoint a historic district commitee, which he had not known about until it appeared on the agenda the day of the council’s meeting. [Chronicle coverage of the meeting: "Demolition Moratorium for Two Block Area"]

Rapundalo also explicitly rejected the speculation that the timing of the resolution was motivated by anything other than the fact that there was no definitive scientific evidence that the dam needed to be removed, and that there was an interest in the city resolving its dispute with the MDEQ in a fiscally responsible way. Filing contested orders was not, he said, a good way for two government agencies to resolve their issues.

Asked what other motivations and speculations he was alluding to, he reported that there’d been emails contending that the resolution had been put on the agenda to take advantage of Mayor John Hieftje’s possible absence on Monday – Rapundalo said that they’d become aware of that possibility only after the resolution was added. Further, it was not certain that the mayor would be absent.

[Editorial aside: Hieftje, who began serving in 1998 on the board of directors of the Huron River Watershed Council, and is currently an alternate member of that body, is seen as at least a mild supporter of the dam-out option. At a recent meeting on the local economy, Hieftje took a third-person view of the situation, when he said that he did not think the Argo Dam would be removed. It reflects the difficulty of his political position. On the one hand, Hieftje's affiliation with HRWC and his interest in staking out the pure environmental ground are an argument for him to support the dam-out option. On the other hand, there's a general consensus that public sentiment is greater for the dam-in option. If the vote on the question happens in his absence, his voting record won't reflect any position on the issue, which gives him maximum political flexibility in the future. So any possible maneuvering based on Hieftje's presence or absence at the meeting could be analyzed as providing Hieftje with a way to avoid voting at all, but could not reasonably be seen as a way to avoid Hieftje's opposition to the resolution. After all, there's nothing to fear from the additional "no" vote the mayor might cast – successful passage of the resolution depends only on getting six votes in support. It's an issue that will be moot if the mayor is able to attend Monday's meeting, or if the decision is postponed until a later time when he's present.]

In addition to rejecting the idea that the mayor’s presence or absence had anything to do with the timing of the resolution, Rapundalo ruled out the possibility that the timing was motivated by an interest in shoring up Marcia Higgins’ re-election chances. Higgins’ opponent in the Ward 4 race is Hatim Elhady, who supports keeping Argo Dam. The success of two candidates in the August Democratic primary – Mike Anglin in Ward 5 and Stephen Kunselman in Ward 3 – has been ascribed partly to their support of keeping Argo Dam in place.

Questions to be Answered

In council deliberations on Monday, the focus could be on the the issue of process as opposed to the merits of the dam-in versus dam-out scenarios.

That’s because, from a short-term practical point of view, a consensus seems to have already emerged that the dam-in scenario is the favored option. As Sabra Briere (Ward 1) put it on Sept. 8, in the week prior to that briefing she’d sensed a shift from a question of whether to keep the dam or not to the question of who pays to mantain the dam. Together with Hieftje’s prediction that the dam would stay, this suggests an acknowledgement that the dam-in scenario has won the day. In that regard, it’s worth pointing out, however, that Rapundalo stressed at the Sunday caucus that the resolution would not preclude ongoing discussions by various environmental groups and that the dam’s removal was not being ruled out for all time.

Briere’s identification of the question on Sept. 8 of who pays was echoed Sunday evening by the watershed council’s Laura Rubin. She pointed out that the dam is currently maintained out of the water fund – something she suggested was probably illegal – and called for the cost to be transferred to parks and recreation where it belonged, because Argo Dam is a recreational dam. Rubin also pointed out that in two years, the dam is due for $250,000 worth of maintenance, a cost that needed to be factored into budget calculations.

Rubin also wanted to know how the legal action was being paid for, which the city was undertaking in the form of the contested order. Rapundalo speculated that it was coming from the city attorney office’s budget but said he’d look into that to get a definitive answer.

Summarizing some questions that might be given some clarity in the course of council deliberations on Monday:

• How will maintenance costs for Argo Dam be funded in the future?
• Have the piezometers yielded data that bears one way or another on the berm safety issue?
• What’s the formal status of the contested order with the MDEQ – has the order actually been contested to the full extent that it can be contested?
• How much has Bodman been paid already, and how much is the legal bill expected to be if the contested order continues to be pursued?
• Out of what fund is the legal fee being paid?