Innovative Strategies to Apply Water Quality Criteria for Bacteria: A 50-State Survey of EPA-Approved Approaches for Freshwaters

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ABSTRACT
Section 101 of the Clean Water Act requires recreational activities to be protected when and where they occur. States, which have adopted a wide variety of strategies to meet this obligation, have one or more formal use classifications to recognize different types of recreational activities. Most states have developed narrative or numeric water quality criteria to limit pathogen pollution in waterbodies where people recreate. However, no two states have implemented bacterial standards using the exact same approach.

The Total Maximum Daily Load (TMDL) development process has created increased interest in reviewing the appropriateness of recreational use classifications. One recent survey of state regulators found that nearly half of all 303(d) listings may not have been necessary if there had been a quick and cost-effective way to revise water quality standards to more accurately reflect the true use potential of waterbodies.

The authors of this paper reviewed the recreational use classifications (including all relevant subcategories) and bacterial water quality standards for all fifty states. The purpose of the survey was to identify regulatory precedents where the U.S. Environmental Protection Agency (EPA) had approved state water quality standards that were materially different than the default recommendations in federal guidance. Survey results showed that that the EPA can and has approved numerous innovative approaches for regulating pathogens other than the traditional criteria recommended by federal guidance and often routinely applied by default.

INTRODUCTION
Section 101 of the Clean Water Act requires recreational activities to be protected when and where they occur. States have adopted a wide variety of strategies to meet this obligation. All have one or more formal use classifications to recognize different types of recreational activities. And, most have developed narrative or numeric water quality criteria to limit pathogen pollution in waterbodies where people play. However, no two states have implemented bacterial standards using the exact same approach.

High coliform concentrations are the second most common reason for including a lake or stream on EPA's 303(d) list of impaired waterbodies. Non-point sources are usually identified as the primary source of pollution and stormwater flows as the principal mode of transport. Consequently, many flood control agencies, public works departments, land management bureaus and private developers find themselves under increased regulatory pressure to reduce bacterial loads. The infrastructure investment needed to meet existing water quality standards for bacteria is estimated to be many tens of billions of dollars nationally.

Naturally, when the cost of compliance is so great, there is considerable controversy as to whether such expenditures are genuinely necessary to protect public health and safety. This is particularly true for concrete-lined flood control channels where public access is prohibited by law and discouraged by fencing. There is also vigorous debate where water quality standards violations are believed to be caused by naturally-occurring non-point sources such as that which
comes from wildlife waste.

The TMDL development process has created increased interest in the water quality standards setting process. One recent survey of state regulators found that nearly half of all 303(d) listings may not have been necessary if there had been a quick and cost-effective way to revise water quality standards to more accurately reflect the true use potential of waterbodies (General Accounting Office 2003).

By law, a Use Attainability Analysis (UAA) is usually required to change water quality standards. Complex, costly and often controversial, the UAA process has been rarely successful because regulators were understandably concerned about any action which appeared to encourage lower water quality. In the last five years, however, driven by 303(d) listings, there has been a significant shift in the willingness of state and federal authorities to consider and approve water quality standards revisions.

This paper summarizes the wide range of regulatory flexibility available to state regulators when designating recreational uses, establishing water quality criteria for bacteria, or implementing those standards in NPDES permits (including numeric limits on stormwater quality). This review was done as part of the work of the Stormwater Quality Standards Study Task Force effort administered by the Santa Ana Watershed Project Authority (SAWPA).

Our review indicates that EPA can and has approved numerous innovative approaches for regulating pathogens other than the traditional criteria recommended by federal guidance and routinely applied by default. The paper will focus on three specific areas of regulatory adjustment:

  • Precedents for subcategorizing recreational uses;
  • Precedents for adopting site-specific pathogen criteria; and
  • Precedents for using permitting adjustments.

With respect to subcategorizing recreational uses, the paper will summarize the difference between the class-based approach (e.g., Class-A, Class-B waters) vs. the use-based approach (e.g., 'primary' recreation, 'secondary recreation') vs. the narrative approach ('full contact,' 'partial contact', 'incidental contact'). The paper will also describe the use of seasonal triggers, flow triggers and other conditional subcategories or use exemptions.

The portion of the paper devoted to water quality criteria will summarize the different pathogen standards applied throughout the U.S., including: the use of fecal coliform vs. E. coli vs. Enterococci; risk-based translators; and adjustments made to account for natural background conditions.

Finally, the paper will explore the different approaches states have used to implement bacteria standards in NPDES permits including accelerated monitoring triggers vs. numeric limits, the range of averaging periods that have been approved, and the minimum number of samples required.

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