Algicide pilot study at Lake Mattamuskeet stalled in court

Hundreds of swans take flight at Lake Mattamuskeet at Mattamuskeet National Wildlife Refuge in North Carolina.  Photo: Michelle Moorman/USFWS, Public Domain
Hundreds of swans take flight at Lake Mattamuskeet at Mattamuskeet National Wildlife Refuge in North Carolina. Photo: Michelle Moorman/USFWS

An ongoing lawsuit has suspended both the U.S. Fish and Wildlife Service’s plan to treat toxic blue-green algae in Lake Mattamuskeet and government funding for the project.

On behalf of Defenders of Wildlife and the Sierra Club, the Southern Environmental Law Center on May 20 challenged the agency’s decision “to authorize the experimental use of an algaecide identified by the U.S. Environmental Protection Agency as toxic to birds in the 40,000-acre Lake Mattamuskeet’, which has shown declining water quality since the early 1990s.

Established in 1934, the 50,180-acre Mattamuskeet National Wildlife Refuge provides habitat for hundreds of species of birds and is part of the Atlantic Flyway. The lake once filled with seagrass no longer had any in 2017, and declining underwater vegetation has led to poor water quality and clarity and contributed to large blooms of phytoplankton and cyanobacteria, or blue-green algae, according to the Fish and Wildlife Service.

The North Carolina Collaboratory, under the direction of the General Assembly, awarded a $5 million contract in July 2022 to the supplier, BlueGreen Technologies, which has an office in Pennsylvania, to test its Lake Guard Oxy product on 400 acres of the lake. Based on the results of several toxicity tests, the maximum single application rate would be 50 pounds per acre of Lake Guard Oxy, according to the agency.

Ramona McGee, senior attorney and leader of the Southern Environmental Law Center’s Wildlife Program, explained to Coastal Review that Mattamuskeet Refuge “is a respected bird sanctuary, so we are very concerned about the impact on birds of this toxic algae killer. This is a plan that arose from the North Carolina General Assembly allocating funds to the Collaboratory to conduct an experimental test of an algaecide. And for whatever reason they chose Lake Mattamuskeet as their testing site.”

The lawsuit asks the court to block the plan until the Fish and Wildlife Service “conducts a complete analysis that protects the mission and purpose of the wildlife refuge and takes a hard look at the harm from the toxic algaecide and available alternatives,” it said Centre. in his announcement.

The agency, in a response to the lawsuit filed on May 29, states that because of the North Carolina Department of Environmental Quality’s May 16 press release announcing that the “project would begin ‘on June 1,’” the plaintiffs filed this lawsuit and had requested a temporary solution. restraining order and preliminary injunction. However, as a result of the lawsuit, the Collaboratory has terminated funding and suspended the project due to this ongoing lawsuit.”

The law center’s McGee explained that not all details are known about how the company was selected for the investigation.

“What we do know is that BlueGreen Technologies registered lobbyists in the North Carolina General Assembly, and then the North Carolina General Assembly appropriated funds for this research. The supplier had to meet very specific criteria, and those criteria matched BlueGreen’s Lake Guard Oxy product and, ‘not surprisingly’, when the request for bids went out for this product, BlueGreen won with its Lake Guard Oxy product.

“Then, through whatever decision-making process, they chose Lake Mattamuskeet as the test site and again Mattamuskeet National Wildlife Refuge is a bird sanctuary, and this algaecide is toxic to birds,” McGee said.

A representative of the U.S. Fish and Wildlife Service told Coastal Review that the agency does not comment on current or pending litigation.

Emergency aid

The Fish and Wildlife Service issued its final environmental assessment for the cyanobacteria treatment pilot study in March, and not long after, on May 16, the NCDEQ issued the press release stating that, under state law on cyanobacteria, the department water quality, had issued a certificate of coverage for the project to start as early as June 1.

“That’s why the plaintiffs, the conservation groups here, went to court asking for emergency relief,” McGee said, referring to the complaint filed May 20, the motion filed May 24 seeking a temporary restraining order and a preliminary injunction was requested. such as the court-ordered, expedited hearing that took place on May 31.

The Fish and Wildlife Service, the defendants in this case, indicated in their response letter in opposition to SELC’s May 29 motion that the Collaboratory had temporarily “suspended funding and placed the project on hold due to this pending litigation,” but that financing can resume at any time.

The agency added that despite the Department of Environmental Quality’s announcement that the pilot study could begin on June 1, several steps needed to be taken before the first treatment could be applied. These steps may take approximately ten weeks to complete.

SELC said in its May 30 response to the defendant’s response letter that its clients welcomed the new information and agreed to withdraw their request for a temporary restraining order, but not their request for a preliminary injunction.

“Because, as Defendants note, the UNC Collaboratory may resume funding the Project and initiate the Project at any time, the Conservation Groups maintain their request for a preliminary injunction,” the response said.

McGee said that now, because of the new timeline, “we are back to the briefing.”

This means the defendants must respond to the law center’s May 30 response by June 21, and the groups must then respond within 10 days, McGee explained.

This is still a request. “We are still asking the court at this time to issue an order ensuring that defendants will not continue with the toxic algae control experiment during the pendency of the lawsuit, but it is at a slightly slower pace than before , given that defendants have essentially assured us and the court that they will not apply the algaecide in the coming months,” McGee said.

The Collaboratory said in a statement in response to Coastal Review’s query that the supplier was selected in accordance with state law and that an academic team from the University of North Carolina Chapel Hill worked with the supplier to collect and analyze baseline water quality data. judge. from Mattamuskeet Lake.

“Baseline data collection is ongoing and the Collaboratory has made it clear to the supplier that the next phases of the project, including cost reimbursements for treatment activities, will be dependent on obtaining all necessary state and federal permits. The continued collection of this data is important to better understand the impact and effects of harmful algal blooms (HABs) in aquatic environments across our state,” the statement said.

‘Bad comic book villain plot’

Plaintiffs Erin Carey, acting state director of the Sierra Club North Carolina Chapter, and Jane Davenport, senior attorney at Defenders of Wildlife, remain concerned about the algae kill study.

“An experimental algaecide that is toxic to birds, intended for use in a federal bird sanctuary so that a private company can collect proprietary information for its own profit — this whole thing feels like the evil plot of a comic book villain,” Casey said. “Common sense, public outcry, and even long-standing mission priorities have failed to stop this misaligned and destructive project; our lawsuit is the logical next step. The stewardship inherent in the management of our natural areas is crucial for the protection of thousands of species. We are proud to work with our partners to protect the birds and other wildlife of Lake Mattamuskeet.”

Davenport reiterated that Defenders of Wildlife “remains deeply concerned about the use of Mattamuskeet National Wildlife Refuge as a testing ground for an algaecide known to be toxic to birds. We are grateful that we have more time to fully explain the legal issues with the Fish and Wildlife Service’s short-circuited environmental review, which treated the experiment as a foregone conclusion.”

‘Little risk of negative consequences for birds’

The EPA said in March 2023 that Lake Guard Oxy “is toxic to birds. Do not apply this product or allow it to drift onto flowering crops or weeds while pollinating insects are actively visiting the area.”

The environmental assessment released by the Fish and Wildlife Service in March 2024 notes that the “toxic to birds” statement on Lake Guard Oxy’s label “should be considered in the context of the product’s use,” but concluded that the expected benefits compensate for the risk.

“The Service believes that use of Lake Guard Oxy in the manner and location in which it is proposed will pose little risk of adverse impacts to birds. The potential long-term benefits of the proposed action for birds and refuge habitats outweigh the potential negative impacts.”

A spokesperson for BlueGreen Water Technologies told Coastal Review on Monday that the company has “safely remediated water bodies around the world using its Lake Guard Oxy technology to improve ecosystems for waterfowl and wildlife.”

While the EPA’s product label “advises potential toxicity of the active ingredient under various land and water conditions,” BlueGreen’s protocol is specific to harmful algal blooms and our dosages for Lake Mattamuskeet are below toxic thresholds as confirmed by proactive testing at waterfowl. ,” they said.

The product “was developed as a ‘leave no trace’ protocol for use in threatened ecosystems battling toxic, harmful algal blooms, such as Lake Mattamuskeet. The peroxide-based product is completely biodegradable and breaks down into water and oxygen molecules. Compared to other peroxide-based treatments, Lake Guard Oxy has been shown to provide higher efficacy at much lower doses due to its sustained-release floating formula,” they continued.