Judge rules against challenged algaecide plan for Lake Mattamuskeet

A federal judge has ruled in favor of environmental groups and against the US Fish and Wildlife Service in a dispute over an algaecide pilot project proposed for Lake Mattamuskeet. A court order Wednesday emphasized the potential negative impact on birds.

US District Judge Terrence Boyle’s order will require the federal government to prepare a new environmental impact statement before proceeding with the plan.

Thanks to water quality problems dating back to the 1980s, federal officials planned to launch a pilot project on a portion of Lake Mattamuskeet involving treatment with a chemical called Lake Guard Oxy, developed by BlueGreen US Water Technologies. The goal was to reduce algae blooms, increase water clarity, and increase birds’ underwater food supply.

The 40,000-acre Lake Mattamuskeet is North Carolina’s largest natural lake, according to the Fish and Wildlife Service. It makes up most of the 50,000-acre Mattamuskeet National Wildlife Refuge in Hyde County established in 1934.

The group Defenders of Wildlife and the Sierra Club sued to block the plan. They raised concerns about the potential impact on birds within the refuge. Plaintiffs accused the Fish and Wildlife Service and federal Council on Environmental Quality of violating the National Environmental Policy Act.

“The Court agrees with the Conservation Groups that the Project is not properly classified as a refuge management activity,” Boyle wrote. The project “fails to fulfill one of the purposes of the Refuge and Refuge System generally.”

“Whether the application of LakeGuard Oxy would support any other conservation purpose of the Refuge, for example by improving water quality, it cannot seriously be argued that such an action does not also have the potential to directly impair an equally, if not more, important purpose of the Refuge – providing sanctuary to birdsm” Boyle wrote. “In other words, a new refuge management activity which would fulfill one purpose of the Refuge while impairing another requires the Service to engage in a compatibility determination.”

Federal officials justified the project with documents known as an environmental assessment, EA, and a finding of no significant impact, FONSI, rather than the environmental impact statement, Boyle noted.

“The Service’s conclusion that the Project would not significantly impact the environment was not reasonable,” the judge wrote. “LakeGuard Oxy is known to be toxic to birds, and the Lake is part of an ‘inviolate sanctuary for migratory birds’ and ‘a refuge and breeding ground for birds and wild animals.’”

The Fish and Wildlife Service had planned to use the algaecide during summer months when migratory birds were less likely to use the refuge. Staff members also would work to keep other birds away from the algaecide. Boyle’s order mentioned the “mitigation measures.”

“But describing the Project as a pilot project and limiting the application of LakeGuard Oxy to only a portion of the Lake does not make the impact of such a substance less significant,” Boyle wrote. “[I]t is undisputed that LakeGuard Oxy is labeled as toxic to birds, and perhaps its application in another environment not uniquely designated as a sanctuary for birds would be cause for less concern. Nonetheless, the Court must ‘remain mindful that “when it is a close call whether there will be a significant environmental impact from a proposed action, an EIS should be prepared.”’”

“The EA and FONS! fail to make clear how five Service staff members can adequately monitor 400 acres of the Lake during the application process,” Boyle wrote. “The Conservation Groups have demonstrated that the Service failed to act reasonably when it declined to prepare an EIS.”

Boyle also focused on the fact the pilot project started with a September 2022 proposal from the University of North Carolina Collaboratory.

“Importantly, the Court has also taken into consideration the fact that the Service was approached by BlueGreen and the Collaboratory with the Project — in other words, the Service did not endeavor to create a pilot project to study the impact of an algaecide at the Lake,” Boyle wrote. “Under such circumstances, the agency has ‘the duty under NEPA to exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project.’”

“Here, the Service relied primarily on BlueGreen’s own statements and studies in determining that the application of LakeGuard Oxy would not substantially impact the environment,” Boyle wrote. “Even affording the Service the deference it is due, the failure to adequately explore the environmental impacts of LakeGuard Oxy and assess adverse effects of similar chemicals was arbitrary and capricious.”

“At bottom, the Conservation Groups have demonstrated that the Service’s EA and FONSI omits unexplored and unanalyzed risks to the very inhabitants that the Refuge is designed to protect, and thus that the Service violated NEPA when it failed to prepare an EIS for the Project,” Boyle wrote. “The Conservation Groups have further demonstrated that the Service failed to adequately assess or disclose the reasonably foreseeable effects of the Project and failed to objectively evaluate a reasonable range of alternatives.”

“There can be no doubt that the presence of cyanobacteria is critically impacting the health of the Lake,” Boyle added. “But before engaging in a project, even one which is small-scale , which threatens to harm the Lake’ s most prized inhabitants, a hard and careful look at the impacts of such action is required.”

Boyle threw out part of the lawsuit objecting to a 2020 federal government rule which was replaced by a new rule earlier this year.

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