Lake Mattamuskeet (Photo: Lisa Sorg)
Young Kang, an attorney with the U.S. Department of Justice, had not even finished announcing his last name when Judge Terence Boyle cut him off.
“Why are you doing this?” Boyle, who was appointed to the federal bench by President Reagan in 1984, barked at Kang. “This is a drastic approach.”
The drastic approach is the U.S. Fish & Wildlife Service’s approval of a toxic algaecide treatment on 400 acres of Lake Mattamuskeet, a renowned bird sanctuary and national wildlife refuge in coastal North Carolina’s Hyde County.
The questionable algaecide experiment is the latest intervention intended to cure the lake’s many ills that humans themselves have caused: An infestation of common carp, sea level rise that contributes to lake flooding, and poor water quality that has earned the lake a spot on the federal “impaired waters” list.
In U.S. District Court last week, attorneys from the Southern Environmental Law Center asked Boyle to grant a preliminary injunction to stop FWS from proceeding with the treatment, arguing it is inappropriate to use a wildlife refuge as a “testing ground.”
This was an expedited hearing because the N.C. Department of Environmental Quality had approved a certificate allowing treatment to begin as early as June 1.
A private company, BlueGreen US Water Technologies, would receive $4 million in taxpayer funds, appropriated by the state legislature, to conduct the experiment using one of its products, Lake Guard Oxy.
And the treatment itself is not intended to be a permanent solution to the algae problem. However, it would allow the company to collect water quality and other data in the lake, which would then be private business information.
Kang, representing FWS, maintained that the application of Lake Guard Oxy is necessary to control the explosion of algal blooms – some of them also toxic. With the algae gone, or at least decreased, the conditions could spur the growth of beneficial underwater vegetation, which serves as important fish habitat and a food source for birds.
“The service hopes to return Lake Mattamuskeet to its former glory,” Kang said.
However, Lake Guard Oxy is toxic to birds, according to the chemical label. Testing conducted by BlueGreen US Water Technologies showed that half a gram of the product – lighter than the weight of a raisin – killed bobwhite quail that ingested it. Mallard ducks threw it up.
The full list of chemicals in the product is considered confidential business information.
“How is testing on quail applicable to swans?” Boyle asked Ramona McGee, senior attorney for the Southern Environmental Law Center, which is representing the Sierra Club and Defenders of Wildlife.
“Good question,” McGee replied. “Fish & Wildlife should have investigated and disclosed that.”
Once placed in the water, the algaecide can take days to dissolve. During that time, birds could eat it.
“This is an unprecedented action to use this algaecide in a wildlife refuge,” McGee told the court. “It could kill the birds the sanctuary was designed to protect.”
The human toll on Lake Mattamuskeet
On a recent summer day, a turkey vulture coasted on the thermals over Lake Mattamuskeet. An indigo bunting skittered from a marsh. Canada geese and their young chicks pecked in the roadside grass.
Other than an occasional car on the causeway, the only sounds were the rasp of the reeds chafing in the breeze and the gentle lapping of waves on the rocks.
For the past 80 years, Lake Mattamuskeet has been the centerpiece of a national wildlife refuge that bears its name. It serves as a waystation for millions of migratory birds, such as tundra swans and Northern pintails and snow geese, who travel twice a year along the Atlantic Flyway from Canada to the tropics. Some overwinter. Others, like yellow-billed cuckoos, blue herons and mallard ducks, hang out year-round.
However, there are fewer birds now than even a decade ago. The number of tundra swans has plummeted since 2017, state and federal wildlife surveys show.
“Where are the birds going?” Boyle asked Kang, the attorney representing the Fish & Wildlife Service. “No one has interviewed a tundra swan.”
“We don’t know where they’re going,” Kang replied.
But Kang noted that the decrease in tundra swans coincides with the near-extermination of underwater vegetation, the persistent problem of invasive carp that uproot the beneficial grasses, and the proliferation of harmful algae.
What was not said is that these are the consequences of well-meaning but bad decisions made by humans who have tried to subjugate Lake Mattamuskeet’s natural order.
We drained it for agriculture. The lake shrunk from 110,000 acres to 40,000, but refilled, albeit to much shallower depths – just 4 feet. Now the lake is “hot,” with warm temperatures fueling the algal blooms.
We dug canals between farms and the lake to control flooding. That sends fertilizer into the lake — an endless buffet for algae.
We temporarily installed stainless steel tidal gates that altered the flow of water between the lake and the Pamlico Sound. That hindered fish from entering the lake and again, fostered the growth of algae. (The gates have since been replaced with ones that allow fish to pass through more easily.)
We built the nearby Atlantic Intracoastal Waterway and carved a causeway through the middle of the lake. We introduced common carp.
We burned fossil fuels that warmed the planet and contributed to sea level rise that is altering how water flows to and from the lake.
And now, McGee, the SELC lawyer, said, the Fish & Wildlife Service wants to try the toxic approach.
Court records show FWS did not investigate if the algaecide treatment is compatible with a wildlife refuge. Nor did FWS analyze bird toxicity studies conducted by BlueGreen Water Technologies, relying instead, McGee said, “only on personal communications,” with the company.
FWS says it will “harass” birds while the lake is treated to keep them from ingesting the algaecide. But as McGree pointed out, only five staff are available to monitor the 400-acres treatment area. And the harassment itself could evict birds from their nesting areas.
Nor did FWS conduct a full Environmental Impact Statement, only a less thorough “Environmental Assessment,” McGee told the judge. “That’s another failure,” McGee said.
A connection with state lawmakers
BlueGreen US Water Technologies has deployed Lake Guard Oxy in other water bodies in the U.S., but none in a wildlife refuge. In 2021, the Florida-based company hired a lobbying firm to advocate for its interests before the North Carolina legislature.
That same year, state lawmakers appropriated $4.2 million to the North Carolina Collaboratory, a think tank and research organization based at UNC-Chapel Hill, to address the proliferation of algae in state water bodies, although the budget language did not specify Lake Mattamuskeet.
In 2022, the Collaboratory requested bids and received two: BlueGreen and SePro. The Collaboratory chose BlueGreen because its toxic algaecide would ostensibly be more effective; it floats on the water surface and doesn’t mix with sediment.
(SePro, which has a research facility in Rocky Mount, also has a history with the state. In 2017, the company proposed using $1.3 million in state funds to chemically treat Jordan Lake, a drinking water supply for more than 350,000 people, with an algaecide. The U.S. Army Corps of Engineers, which has jurisdiction over Jordan Lake, rejected the proposal. At the time, EPA Region 4 office also dismissed this method, which, when used alone, as inadequate. “This [chemical] approach is generally inconsistent with the Clean Water Act,” the letter read, which calls for “controls at the source of the pollution to address water quality impairments.”)
Nowhere is the use of algaecides mentioned in the Lake Mattamuskeet Restoration Plan, co-developed by the nonprofit N.C. Coastal Federation and approved by state environmental regulators in 2019.
Instead, the plan calls for ongoing removal of the carp, installing filter strips along drainage ditches to inhibit fertilizers and herbicides from entering the lake, incentivizing more ecologically sound farming practices and inspecting septic systems that could be leaking into the lake.
Restoring underwater vegetation “is a laudable goal,” McGee of the SELC told Boyle, “but algaecide does not achieve it.”
Even if the treatment did work, McGee said, it would only be temporary and cost $400 million to treat the entire lake.
Because FWS had just 48 hours to prepare for the expedited hearing, Boyle continued the case. But he told FWS not to treat the lake in the meantime.
“Nothing is going to happen,” Boyle said, adding he would issue a temporary restraining order if FWS disobeyed his directive. “Ecologically, this is a World Series event.”
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