An ongoing lawsuit has put on hold both the U.S. Fish and Wildlife Service’s plan to treat the toxic blue-green algae in Lake Mattamuskeet and state funding for the project.
On behalf of Defenders of Wildlife and the Sierra Club, the Southern Environmental Law Center challenged on May 20 the service’s decision “to allow 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.
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The 50,180-acre Mattamuskeet National Wildlife Refuge was established in 1934, providing habitat for hundreds of species of birds and is part of the Atlantic Flyway. The lake once filled with seagrass had none by 2017, and the declining submerged aquatic 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, in July 2022 awarded a $5 million contract to the vendor, BlueGreen Technologies, which has an office in Pennsylvania, to test out its Lake Guard Oxy product on 400 acres of the lake. Based on results of several toxicity tests, the maximum single dosage rate to be used was to be 50 pounds per acre of Lake Guard Oxy, according to the service.
Southern Environmental Law Center Senior Attorney and Leader of the Wildlife Program Ramona McGee explained to Coastal Review that Mattamuskeet Refuge “is a revered bird sanctuary, so we’re very concerned about the impacts to birds from this toxic algaecide. This is a plan that resulted from the North Carolina General Assembly appropriating funds to the Collaboratory to conduct an experimental test of an algaecide. And for whatever reason, they selected Lake Mattamuskeet as their test site.”
The lawsuit is asking the court to block the plan until the Fish and Wildlife Service “conducts a full analysis that protects the mission and purpose of the wildlife refuge and takes a hard look at the toxic algaecide’s harms and the available alternatives,” the center said in its announcement.
The service, in a response to the lawsuit filed May 29, states that because of the North Carolina Department of Environmental Quality’s May 16 press release announcing that the “project would be ‘starting on June 1,’ Plaintiffs initiated this lawsuit and sought a temporary restraining order and preliminary injunction. However, as a result of the lawsuit, the Collaboratory has halted funding and put the Project on hold due to this pending lawsuit.”
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McGee with the law center explained that not all details of how the company was selected for the study are known.
“What we do know is that BlueGreen Technologies registered lobbyists in the North Carolina General Assembly, and then subsequently the North Carolina General Assembly appropriated funds for this study. The vendor had to meet very specific criteria, and those criteria” match up with BlueGreen’s Lake Guard Oxy product and, “kind of unsurprisingly,” when the request for bids went out for this product, BlueGreen won with its Lake Guard Oxy product.
“After that, through whatever decision-making process, they selected 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 U.S. Fish and Wildlife Service representative told Coastal Review that the service does not comment on active or pending litigation.
Emergency relief
The Fish and Wildlife Service released in March its final environmental assessment for the cyanobacteria treatment pilot study, and not long after, on May 16, the NCDEQ issued the press release stating that the department, under state water quality laws, had granted a certificate of coverage for the project to move forward as early as June 1.
“Because of that, the plaintiffs, the conservation groups here, went to the court seeking emergency relief,” McGee said, referring to the complaint filed May 20, motion filed May 24 that sought a temporary restraining order and a preliminary injunction, as well as the court-ordered, expedited hearing which took place May 31.
The Fish and Wildlife Service, the defendants in this case, indicated in their response brief in opposition to SELC’s motion dated May 29 that the Collaboratory had temporarily “halted funding and put the Project on hold due to this pending lawsuit,” but that funding could resume at any time.
The service added that, despite the Department of Environmental Quality’s announcement that the trial study could start on June 1, there were several steps that needed to be taken before the first treatment could be applied. Those steps could take around 10 weeks to complete.
SELC, in its May 30 reply to the defendant’s response brief, said 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 could resume funding the project at any time and set the project in motion, the Conservation Groups maintain their request for a preliminary injunction,” according to the reply.
McGee said that now, because of the new timeline, “we’re back to briefing.”
This means that the defendants will need to respond to the the law center’s May 30 reply by June 21, and then the groups would have to answer within 10 days, McGee explained.
This is still a request. “We’re still asking, at this point, the court to issue an order ensuring that defendants won’t move forward with the toxic algaecide experiment during the pendency of the lawsuit, but it’s at a slightly slower pace than it was before, given that defendants have basically assured us and the court that they’re not going to be applying the algaecide in the next couple of months,” McGee said.
The Collaboratory, in a prepared statement in response to Coastal Review’s query, said the vendor was selected in accordance with state law and that an academic team from the University of North Carolina Chapel Hill was working with the vendor to gather and assess baseline water quality data from Lake Mattamuskeet.
“The baseline data collection is ongoing, and the Collaboratory has made it clear to the vendor that subsequent phases of the project, including cost reimbursements for treatment activities, will depend on having all necessary State and federal authorizations in place. The continued collection of these data are important to better understand the impacts and effects of harmful algal blooms (HABs) in aquatic environments throughout our State,” according to the statement.
‘Evil plot of a comic book villain’
Plaintiffs Sierra Club North Carolina Chapter Acting State Director Erin Carey and Jane Davenport, senior attorney at Defenders of Wildlife, remain concerned about the algaecide study.
“An experimental algaecide that’s toxic to birds, targeted for use in a federal bird sanctuary, so a private company can collect proprietary information for its own profits –this whole thing feels like the evil plot of a comic book villain,” Carey said. “Common sense, public outcry, and even long-established mission priorities have failed to stop this misaligned and destructive project; our lawsuit is the logical next step. The stewardship inherent to the management of our preserves is paramount to the protection of thousands of species. We are proud to stand with our partners to protect the birds and other wildlife of Lake Mattamuskeet.”
Davenport reiterated that Defenders of Wildlife continues “to be very concerned about using 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 lay out the legal issues with the Fish and Wildlife Service’s short-circuited environmental analysis that treated the experiment as a done deal.”
‘Little risk of negative impact to 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 to blooming crops or weeds while pollinating insects are actively visiting the area.”
The environmental assessment the Fish and Wildlife Service released in March 2024, notes that the statement, “toxic to birds,” on the label of Lake Guard Oxy, “must be considered in the context of the use of the product,” but concluded that the expected benefits offset the risk.
“The Service believes that use of Lake Guard Oxy in the manner and location in which it is proposed will have little risk of negative impact to birds. The potential long-term benefits of the proposed action for birds and refuge habitats outweighs the potential for negative impacts.”
A BlueGreen Water Technologies spokesperson told Coastal Review Monday that the company “has safely remediated water bodies around the globe using its Lake Guard Oxy technology to improve ecosystems for waterfowl and wildlife.”
While the EPA’s product label “advises for potential toxicity of the active ingredient under a variety of conditions on land and water, BlueGreen’s protocol is specific to harmful algal blooms and our dosage rates for Lake Mattamuskeet are below toxic thresholds as confirmed through proactive testing on waterfowl,” they said.
The product “was developed as a ‘leave no trace’ protocol for use in threatened ecosystems battling toxic, harmful algae blooms, like Lake Mattamuskeet. The peroxide-based product is fully biodegradable and breaks down into water and oxygen molecules. Compared to other peroxide-based treatments, Lake Guard Oxy has been found to provide higher efficacy at much lower doses due to the floating time-release formulation,” they continued.
