AMSA Regulatory Alert (RA 02-13)

To: Members & Affiliates, Water Quality Committee
From: National Office
Date: June 19, 2002
Subject: EPA PUBLISHES DRAFT IMPLEMENTATION GUIDANCE FOR AMBIENT WATER QUALITY CRITERIA FOR BACTERIA – REQUEST FOR MEMBER COMMENT
Reference: RA 02-13

Action Please By:
July 22, 2002

On June 11, the U.S. Environmental Protection Agency (EPA) published a revised draft of its Implementation Guidance for Ambient Water Quality Criteria for Bacteria (Draft Guidance). EPA began work on the document in 1999 in response to the 1999 Action Plan for Beaches and Recreational Waters and issued an earlier draft in February 2000. The revised draft includes additional information to help states transition from the use of total coliform and fecal coliform counts to E. coli and enterococci as indicators of unhealthy levels of bacteria in recreational waters. The Draft Guidance also incorporates guidance on implementing provisions of the Beaches Environmental Assessment and Coastal Health Act of 2000 (BEACH Act), which requires coastal and Great Lakes states, by April 2004, to adopt EPA’s recommended water quality criteria for bacteria or other criteria that are as protective as the Agency’s criteria.

EPA will consider any comments on the Draft Guidance received by August 2, 2002. AMSA will work through its Water Quality Committee to compile comments on the Draft Guidance. Comments should be submitted to Will Pettit, AMSA at wpettit@amsa-cleanwater.org. Please respond by Monday, July 22, so that we may include your input in AMSA’s comments. The Draft Guidance is available on EPA’s web site at: http://www.epa.gov/waterscience/standards/bacteria.

Related AMSA Positions and Past Comment
Over the past year, AMSA commented on two separate EPA actions directly related to the draft guidance. On October 1, 2001, AMSA commented on the Agency’s Draft National Beach Guidance and Performance Criteria for Recreation Waters (66 Fed. Reg. 39510; July 31, 2001). AMSA’s comments highlighted the need for additional study of E. coli and enterococci as indicator organisms before any wholesale changes were made to water quality standards. AMSA also noted a number of flaws in the studies cited by EPA to support the use of the new indicators and cautioned the Agency to acknowledge sources of bacterial contamination other than humans (i.e., wildlife). On October 29, 2001, AMSA commented on EPA’s proposal of test methods for the enumeration of E. coli and enterococci. The test
methods were designed for ambient water quality monitoring purposes, not for evaluating pathogen levels in effluent. EPA specifically limits the applicability of the methods to ambient water. AMSA commented that any switch in indicator organism would be complicated by the lack of test methods to evaluate the new parameters in effluent. AMSA also noted that there is no evidence that POTWs meeting limits based on fecal coliform are causing any in-stream or downstream compliance, health, or environmental problems.

The Draft Guidance
Despite EPA’s previous attempts to encourage states to adopt E. coli and/or enterococci as indicators of bacterial contamination into their water quality standards, to date only 18 states, three territories, and six authorized tribes have made the change. The revised draft of the Draft Guidance addresses those issues identified by states as impeding their progress towards adopting the recommended criteria. The Draft Guidance also reiterates much of the information that was presented in the Draft National Beach Guidance and the proposal of test methods for E. coli and enterococci. The following provides a summary of the content of the Draft Guidance:

• EPA reaffirms the scientific validity of the Ambient Water Quality Criteria for Bacteria developed in 1986 (that use E. coli and enterococci as indicators). EPA does not believe that there is any new scientific information or data justifying a revision at this time. EPA notes that the Agency will conduct additional epidemiological studies (planned for pilot study in summer 2002) in accordance with provisions of the BEACH Act.

• The Draft Guidance provides additional explanation of the relationship among state water quality standards, the requirements of the BEACH Act, and state beach monitoring and advisory programs. EPA explains how the Agency will determine if a state’s water quality standards are as protective as EPA’s criteria. EPA will consider a state’s standards to be as protective as its criteria if:

For fresh water:
1) The criteria are based on an illness rate equal to or less than 14 illnesses per 1000; and
2) Both a geometric mean and a single sample maximum are used.

For marine waters:
1) The criteria are based on an illness rate equal to or less than 19 illnesses per 1000; and
2) Both a geometric mean and a single sample maximum are used.

• EPA provides recommendations on the application of the Agency’s recommended criteria to waters contaminated by non-human sources. In a statement that amends an Agency policy from the Water Quality Standards Handbook, EPA clarifies that “states and authorized tribes should not use broad exemptions from the bacteriological criteria for waters designated for primary contact recreation based on the presumption that high levels of bacteria resulting from non-human fecal contamination present no risk to human health.” According to EPA, states can no longer justify a decision not to apply bacteria criteria to a particular waterbody based solely on the animal origin of the bacterial indicators.

• The Draft Guidance clarifies that states may adopt seasonal recreation uses when appropriate. In many northern areas, waters may be too cold for primary contact recreation for much of the year. For these periods, states may set less stringent secondary contact recreation criteria. EPA’s regulations do not require a formal use attainability analysis (UAA) for the adoption of seasonal recreation uses.

• The Draft Guidance recommends approaches for monitoring the safety of recreational waters in tropical climates where E. coli and enterococci may exist naturally in the soil environment, possibly complicating the use of those organisms as indicators.

• EPA clarifies that states may adopt subcategories of recreation uses to better tailor the level of protection to a particular waterbody. Changes to the primary contact recreation use for a waterbody will require a UAA. EPA provides some example scenarios where it may be appropriate to modify primary contact recreation uses, including high flow situations (i.e., many criteria will not be attainable during wet weather events). EPA outlines some issues for states to address when considering a high flow cutoff. EPA also explains when it may be appropriate to adopt wildlife impacted recreation uses. Where it is shown that primary contact recreation is not an existing use and that the waterbody is significantly impacted by wildlife contamination, states may adopt a secondary contact recreation use or remove the recreational use altogether.

• EPA explains its policy regarding secondary contact recreation uses, when it is appropriate to designate a secondary recreation use, and what information should be contained in a UAA to remove a primary contact recreation use. EPA indicates that states may wish to adopt a secondary contact criterion that is five times that of the geometric mean component of the criterion adopted to protect primary contact recreation, as has been done by other states.

• The Draft Guidance also provides information on how states should make the transition from fecal coliform to E. coli and enterococci. To facilitate the transition, EPA indicates that states may include both fecal coliform and E.coli/enterococci in their water quality standards for a limited period of time, generally one triennial review cycle. Any new or reissued permits would need to contain water quality-based effluent limits reflecting both criteria. The existence of reasonable potential for fecal coliforms would also indicate the existence of reasonable potential for any other criterion for bacteria adopted by the state. EPA claims that POTWs that have used secondary and tertiary treatment for fecal coliforms should find that this treatment also adequately addresses E. coli and enterococci, but notes that some studies have found enterococci more resistant to chlorination than fecal coliform or E. coli. EPA recommends that states use only the geometric mean component for National Pollutant Discharge Elimination System (NPDES) water quality-based effluent limits.

• The Draft Guidance explains how states’ recreational water quality standards should be used to form the basis for water quality-based NPDES permits, assess and determine attainment of water quality standards, and develop subsequent total maximum daily loads (TMDLs) and wasteload allocations.

• The Draft Guidance notes that although the recently proposed test methods for E. coli and enterococci are not yet codified in 40 CFR Part 136, permit writers have the authority to specify methods that are not contained in Part 136. EPA does not address the fact that the test methods are only proposed for use in ambient water quality monitoring purposes.

If you have any questions regarding the Draft Guidance or AMSA’s efforts to prepare comments, please contact Chris Hornback, AMSA at 202/833-9106 or chornback@amsa-cleanwater.org.