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NACWA staff and member agency representatives participated in an EPA workshop this week on the Agency’s ongoing efforts to develop new or revised recreational water quality criteria.  The new federal criteria are being designed to protect surface waters for primary contact recreation (e.g., swimming) and, when published in October 2012, could impact all of NACWA’s members.  The workshop, held June 14-15 in New Orleans, was the last major stakeholder meeting before EPA begins crafting the actual criteria based on the new scientific information it has collected.  During the workshop, EPA provided an overview of the scientific studies it has conducted over the last 2-3 years as the result of a lawsuit filed over the Agency’s failure to meet its obligations under the Beaches Environmental Assessment and Coastal Health (BEACH) Act (Natural Resources Defense Council [NRDC] v. EPA).  The BEACH Act of 2000 required EPA to conduct certain studies and develop new or revised water quality criteria for coastal recreation waters by 2005.  When EPA failed to meet this statutory deadline, NRDC filed suit to compel the Agency to act.  NACWA intervened in the lawsuit to ensure the Agency would have sufficient time to conduct the scientific work needed to develop meaningful criteria and that there would be sufficient opportunities for stakeholder input.  EPA’s presentations during the workshop, most of which will be available on the Agency’s website in the coming weeks, also outlined the Agency’s current thinking on what the new criteria might look like.

Criteria to Apply to All Waters, Will Include Culture and Rapid Test Methods

While the BEACH Act applied only to coastal recreation waters, EPA is currently planning to make the criteria applicable to all waters designated for primary contact recreation, including inland rivers, lakes and streams.  This approach will have major implications for all Clean Water Act (CWA) programs and all of NACWA’s members.  As far as the structure of the new criteria, the Agency is currently signaling that it will preserve much of the existing content of the current criteria EPA published in 1986.  Specifically, the Agency’s current thinking is that it will keep E. coli and enterococci as indicators of water quality in fresh water and enterococci as the indicator for marine water, all enumerated using the existing culture-based test methods.

A new element of the criteria would be the addition of enterococci values for fresh and marine waters enumerated using a new rapid test method, quantitative polymerase chain reaction (qPCR).  Both the culture-based and qPCR-based criteria would be available for use and states would have the option to select the most appropriate indicator/method combination.  During the workshop, EPA indicated that it envisioned the qPCR methods would be used for beach monitoring and notification purposes and the culture-based methods would continue to be used for CWA purposes (e.g., assessments and permit compliance determinations).  In its discussions, EPA made it clear that qPCR would not be appropriate for use in evaluating discharge compliance with CWA permits.  NACWA has expressed concern over the use of qPCR tests for CWA purposes, through a letter to EPA in advance of the meeting and during the stakeholder meeting this week.  One concern is the use of qPCR for beach closure purposes, which often results in the beach being listed as impaired and requiring development of a total maximum daily load.

EPA Plans to Maintain Water Quality Levels with New Criteria

In establishing the protective levels of indicator organisms in the criteria (e.g., number of colony forming units (CFU)/100ml for enterococci in marine waters based on culture methods), EPA indicated that it wishes to maintain the same level of water quality achieved by the current criteria, which may mean little or no change to the current criteria values.  EPA’s current thinking for the new criteria would maintain a geometric mean value component, to be used for evaluating compliance with CWA permits for example, but would modify the existing single sample maximum (SSM) value approach for use in making beach management decisions.  The new statistical threshold value or STV, as currently being evaluated by EPA, would operate like the old SSM, but would more explicitly allow for some acceptable exceedance of this level.  For water quality assessment purposes, EPA envisions that both the geometric mean and the STV would be applied to determine whether a water body was impaired.  EPA will develop the qPCR-based criteria values of enterococci (expressed as calibrator cell equivalents or CCE) for use in both fresh and marine waters using the observed relationship between the qPCR levels and the culture levels in its recent studies to ensure the criteria are equivalent and equally protective.

There was also significant discussion over the levels of ‘acceptable risk’ presented by the existing criteria (i.e., illness rates of 8/1000 for freshwater and 19/1000 for marine waters) and whether those would be preserved in the new criteria.  Based on the method EPA is currently planning to use to develop the criteria, the risk levels for all the new criteria values would represent an illness rate of approximately 8/1000 based on the 1986 definition of illness.  A new, broader definition of illness, however, which does not require a fever to accompany certain illnesses, may actually give the perception that the criteria are less protective than in the past.

Stakeholders Raise Concerns Over Cost, Lack of Refinement in Criteria

State beach managers attending the workshop expressed concern over the cost of establishing labs capable of running the new rapid tests.  Estimates put the cost at $100,000 or more for each qPCR-capable lab.  In order to take full advantage of the rapid tests, states, especially larger states like California, would likely need to have multiple labs to enable same-day analysis of the results.  Beach managers also observed that qPCR results, to be most useful, would need to be taken more frequently than the once-a-week frequency that is employed at many beaches, further increasing the cost of using the new method.  Environmental NGOs and stormwater managers expressed frustration over the fact that EPA’s studies of runoff-impacted beaches provided little useful information and that the new criteria would be based solely on information from POTW-impacted beaches.  While this may be the most conservative approach, affording the most protection, it does not provide the additional refinement that these groups were looking for when managing urban runoff or beaches that are not impacted by POTWs.  NRDC was not represented at the workshop, but Heal the Bay, a California-based environmental group that has been integrally involved in NRDC’s legal efforts, raised several concerns about the general direction that EPA appeared to be taking.

EPA plans to subject the underlying scientific basis for its recommended criteria to an external peer review this summer.  NACWA raised concerns during the meeting over the lack of public involvement during the peer review process, but at this point EPA does not plan to allow comment on the charge questions it will provide to the peer reviewers.  The draft criteria recommendations should be released in early 2012 for public comment, with a target of October 2012 for final publication of the criteria recommendations by EPA.  EPA’s current thinking on the criteria could still change as it continues to brief senior Agency management.  EPA signaled during the meeting that implementation guidance for the criteria would not be released until 2013, after publication of the final criteria, and NACWA urged the agency to release the criteria concurrent with the implementation guidance.  EPA is planning to conduct a webinar in September to brief those who could not attend the workshop on EPA’s current thinking regarding the new criteria and NACWA’s workgroup on this issue will continue to actively engage the Agency on its criteria development efforts.