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July
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1
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
131
[
OW­
2004­
0010;
FRL­
XXXX­
X]

[
RIN
20XX­
XXXX]

Water
Quality
Standards
for
Coastal
and
Great
Lakes
Recreation
Waters
AGENCY:
Environmental
Protection
Agency.

ACTION:
Proposed
Rule.

SUMMARY:
The
Environmental
Protection
Agency
(
EPA)
is
proposing
to
establish
water
quality
criteria
for
bacteria
for
coastal
recreation
waters
in
specific
States
and
Territories.
The
States
and
Territories
covered
by
this
proposed
rule
do
not
have
water
quality
standards
for
bacteria
that
comply
with
the
requirements
of
section
303(
i)
of
the
Clean
Water
Act.
Under
these
circumstances,
the
Act
requires
EPA
to
promptly
propose
such
standards.
The
criteria
proposed
today
apply
to
coastal
and
Great
Lakes
waters
that
specific
States
and
Territories
have
designated
for
swimming,
bathing,
surfing,
or
similar
water
contact
activities
and
for
which
the
State
or
Territory
does
not
have
in
place
EPA­
approved
bacteria
criteria
that
are
as
protective
of
human
health
as
EPA's
1986
recommended
bacteria
criteria.
If
this
proposal
is
promulgated,
the
Federally
designated
water
quality
criteria
will
be
added
to
the
States'
and
Territories'
water
quality
criteria
applicable
to
coastal
recreation
waters.
If
a
State
or
Territory
subsequently
adopts
and
EPA
approves
water
quality
standards
that
meet
the
requirements
of
section
303(
i),
EPA
will
withdraw
the
Federal
standards
for
that
State's
or
Territory's
coastal
recreation
waters.

DATES:
EPA
will
accept
public
comments
on
this
proposed
rule
until
[
INSERT
DATE
30
DAYS
AFTER
PUBLICATION
IN
THE
FEDERAL
REGISTER].
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July
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2
ADDRESSES:
Submit
your
comments,
identified
by
Docket
ID
No.
OW­
2004­
0010,
by
one
of
the
following
methods:

°
Federal
eRulemaking
Portal:
http://
www.
regulations.
gov.
Follow
the
on­
line
instructions
for
submitting
comments.

°
Agency
Website:
http://
www.
epa.
gov/
edocket.
EDOCKET,
EPA's
electronic
public
docket
and
comment
system,
is
EPA's
preferred
method
for
receiving
comments.
Follow
the
on­
line
instructions
for
submitting
comments.

°
E­
mail:
wilcut.
lars@
epa.
gov
°
Fax:
202­
566­
0409.

°
Mail:
Water
Quality
Standards
for
Coastal
and
Great
Lakes
Recreation
Waters,

Environmental
Protection
Agency,
Mailcode:
4305
T,
1200
Pennsylvania
Ave.,

NW.,
Washington,
DC
20460.
Please
include
a
total
of
three
copies.

°
Hand
Delivery:
EPA
Docket
Center
Public
Reading
Room,
EPA/
DC,
EPA
West,

Room
B102,
1301
Constitution
Ave.,
NW,
Washington,
DC
20460.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation,
and
special
arrangements
should
be
made
for
deliveries
of
boxed
information.
Please
include
a
total
of
three
copies.

Instructions:
Direct
your
comments
to
Docket
ID
No.
OW­
2004­
0010.
EPA's
policy
is
that
all
comments
received
will
be
included
in
the
public
docket
without
change
and
may
be
made
available
online
at
http://
www.
epa.
gov/
edocket,
including
any
personal
information
provided,

unless
the
comment
includes
information
claimed
to
be
Confidential
Business
Information
(
CBI)

or
other
information
whose
disclosure
is
restricted
by
statute.
Do
not
submit
information
that
you
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July
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2004
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3
consider
to
be
CBI
or
otherwise
protected
through
EDOCKET,
regulations.
gov,
or
e­
mail.
The
EPA
EDOCKET
and
the
Federal
regulations.
gov
websites
are
"
anonymous
access"
systems,

which
means
EPA
will
not
know
your
identity
or
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
If
you
send
an
e­
mail
comment
directly
to
EPA
without
going
through
EDOCKET
or
regulations.
gov,
your
e­
mail
address
will
be
automatically
captured
and
included
as
part
of
the
comment
that
is
placed
in
the
public
docket
and
made
available
on
the
Internet.
If
you
submit
an
electronic
comment,
EPA
recommends
that
you
include
your
name
and
other
contact
information
in
the
body
of
your
comment
and
with
any
disk
or
CD­
ROM
you
submit.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,

EPA
may
not
be
able
to
consider
your
comment.
Electronic
files
should
avoid
the
use
of
special
characters,
any
form
of
encryption,
and
be
free
of
any
defects
or
viruses.
For
additional
information
about
EPA's
public
docket
visit
EDOCKET
on­
line
or
see
the
May
21,
2002
Federal
Register
(
67
FR
38102).
For
additional
instructions
on
submitting
comments,
go
to
section
I.
B.

of
the
SUPPLEMENTARY
INFORMATION
section
of
this
document.

Docket:
All
documents
in
the
docket
are
listed
in
the
EDOCKET
index
at
http://
www.
epa.
gov/
edocket.
Although
listed
in
the
index,
some
information
is
not
publicly
available,
i.
e.,
CBI
or
other
information
whose
disclosure
is
restricted
by
statute.
Certain
other
material,
such
as
copyrighted
material,
is
not
placed
on
the
Internet
and
will
be
publicly
available
only
in
hard
copy
form.
Publicly
available
docket
materials
are
available
either
electronically
in
EDOCKET
or
in
hard
copy
at
the
Water
Quality
Standards
for
Coastal
and
Great
Lakes
Recreation
Waters
Docket,
EPA/
DC,
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW,

Washington,
DC.
The
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
4
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Public
Reading
Room
is
(
202)
566­
1744,
and
the
telephone
number
for
the
Water
Quality
Standards
for
Coastal
and
Great
Lakes
Recreation
Waters
Docket
is
(
202)
566­
2422.

FOR
FURTHER
INFORMATION
CONTACT:
Lars
Wilcut,
Standards
and
Health
Protection
Division,
Office
of
Science
and
Technology
(
4305
T),
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW,
Washington,
DC
20460;
telephone
number:
202­
566­
0447;
fax
number:

202­
566­
0409;
e­
mail
address:
wilcut.
lars@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

Table
of
Contents
I.
General
Information
A.
Does
this
Action
Apply
to
Me?

B.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

II.
Background
A.
Statutory
and
Regulatory
Background
B.
1986
Ambient
Water
Quality
Criteria
for
Bacteria
III.
Proposed
Criteria
for
Pathogen
Indicators
in
Coastal
Recreation
Waters
A.
Scope
of
Proposed
Rule
B.
Proposed
Criteria
for
Pathogen
Indicators
C.
Applicability
of
the
Proposed
Rule
IV.
EPA
Review
of
State
and
Territorial
Standards
A.
How
Did
EPA
Decide
Which
States
and
Territories
to
Include
in
Today's
Proposed
Rule?
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product:
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July
8,
2004
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B.
Which
States
and
Territories
are
Included
in
Today's
Proposed
Rule?

C.
Under
What
Conditions
Will
States
and
Territories
be
Removed
from
a
Final
Rule?

V.
Alternative
Regulatory
Approaches
and
Implementation
Mechanisms
A.
Designating
Uses
B.
Compliance
Schedules
VI.
Economic
Analysis
A.
Identifying
Affected
Facilities
B.
Method
for
Estimating
Potential
Compliance
Costs
C.
Results
VII.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
B.
Paperwork
Reduction
Act
C.
Regulatory
Flexibility
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132:
Federalism
F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
and
Safety
Risks
H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,

or
Use
I.
National
Technology
Transfer
and
Advancement
Act
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6
I.
General
Information
A.
Does
this
Action
Apply
to
Me?

People
concerned
with
water
quality
in
Coastal
and
Great
Lakes
States
may
be
interested
in
this
proposed
rule.
Facilities
discharging
pollutants
to
certain
waters
of
the
United
States
in
Coastal
and
Great
Lakes
States
could
be
indirectly
affected
by
this
proposed
rule
since
water
quality
standards
are
used
in
determining
water
quality­
based
National
Pollutant
Discharge
Elimination
System
(
NPDES)
permit
limits.
In
addition,
beach
managers
and
businesses
in
beach
areas
could
also
be
indirectly
affected
by
this
proposed
rule
since
water
quality
standards
are
used
in
making
decisions
regarding
beach
advisories
and
closures.
Categories
and
entities
that
may
indirectly
be
affected
include:

Category
Examples
of
potentially
affected
entities
Industry
Industries
discharging
pollutants
to
the
waters
of
the
States
and
Territories
identified
in
§
131.41.

Municipalities
Publicly­
owned
treatment
works
discharging
pollutants
to
the
waters
of
the
States
and
Territories
identified
in
§
131.41.

Other
Beach
owners
and
managers,
beach
goers
This
table
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
affected
by
this
action.
This
table
lists
the
types
of
entities
that
EPA
is
now
aware
could
potentially
be
affected
by
this
action.
Other
types
of
entities
not
listed
in
the
table
could
also
be
affected.
To
determine
whether
your
facility
may
be
affected
by
this
action,

you
should
carefully
examine
the
language
in
§
131.41
of
today's
proposed
rule.
If
you
have
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
one
of
the
persons
Deliberative
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July
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7
listed
in
the
preceding
"
FOR
FURTHER
INFORMATION
CONTACT"
section.

B.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

1.
Submitting
CBI.
Do
not
submit
information
claimed
as
CBI
to
EPA
through
EDOCKET,

regulations.
gov
or
e­
mail.
Clearly
mark
the
part
or
all
of
the
information
that
you
claim
to
be
CBI.
For
CBI
information
in
a
disk
or
CD
ROM
that
you
mail
to
EPA,
mark
the
outside
of
the
disk
or
CD
ROM
as
CBI
and
then
identify
electronically
within
the
disk
or
CD
ROM
the
specific
information
that
is
claimed
as
CBI.
In
addition
to
one
complete
version
of
the
comment
that
includes
information
claimed
as
CBI,
a
copy
of
the
comment
that
does
not
contain
the
information
claimed
as
CBI
must
be
submitted
for
inclusion
in
the
public
docket.
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR
part
2.

2.
Tips
for
Preparing
Your
Comments.
When
submitting
comments,
remember
to:

i.
Identify
the
rulemaking
by
docket
number
and
other
identifying
information
(
subject
heading,
Federal
Register
date
and
page
number).

ii.
Follow
directions
­
The
agency
may
ask
you
to
respond
to
specific
questions
or
organize
comments
by
referencing
a
Code
of
Federal
Regulations
(
CFR)
part
or
section
number.

iii.
Explain
why
you
agree
or
disagree;
suggest
alternatives
and
substitute
language
for
your
requested
changes.

iv.
Describe
any
assumptions
and
provide
any
technical
information
and/
or
data
that
you
used.

v.
If
you
estimate
potential
costs
or
burdens,
explain
how
you
arrived
at
your
estimate
in
sufficient
detail
to
allow
for
it
to
be
reproduced.

vi.
Provide
specific
examples
to
illustrate
your
concerns,
and
suggest
alternatives.
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July
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vii.
Explain
your
views
as
clearly
as
possible,
avoiding
the
use
of
profanity
or
personal
threats.

viii.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.

3.
Docket
Copying
Costs.
The
first
266
pages
are
free.
Additional
copying
incurs
a
$
25
administrative
fee
and
each
additional
page
is
$
0.15.

II.
Background
A.
Statutory
and
Regulatory
Background
1.
Clean
Water
Act
Section
303
(
33
U.
S.
C.
1313)
of
the
Clean
Water
Act
(
CWA)
directs
States,
Territories,

and
authorized
Tribes,
with
oversight
by
EPA,
to
adopt
water
quality
standards
to
protect
the
public
health
and
welfare,
enhance
the
quality
of
water
and
serve
the
purposes
of
the
CWA.

Under
section
303,
States,
Territories,
and
authorized
Tribes
are
to
develop
water
quality
standards
for
navigable
waters
of
the
United
States
within
the
State,
Territory,
or
authorized
Tribe.
Section
303(
c)
provides
that
water
quality
standards
shall
include
the
designated
use
or
uses
to
be
made
of
the
water
and
water
quality
criteria
necessary
to
protect
those
uses.
The
designated
uses
to
be
considered
by
States,
Territories,
and
authorized
Tribes
in
establishing
water
quality
standards
are
specified
in
the
CWA:
public
water
supplies,
propagation
of
fish
and
wildlife,
recreation,
agricultural
uses,
industrial
uses
and
navigation.
States,
Territories,
and
authorized
Tribes
are
to
review
their
water
quality
standards
at
least
once
every
three
years
and,
if
appropriate,
revise
or
adopt
new
standards.
The
results
of
this
triennial
review
must
be
submitted
to
EPA,
and
EPA
must
approve
or
disapprove
any
new
or
revised
standards.

Section
303(
c)
of
the
CWA
authorizes
the
EPA
Administrator
to
promulgate
water
quality
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July
8,
2004
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9
standards
to
supersede
State,
Territorial,
or
authorized
Tribal
standards
that
have
been
disapproved
or
in
any
case
where
the
Administrator
determines
that
a
new
or
revised
standard
is
needed
to
meet
the
CWA's
requirements.
EPA
regulations
implementing
CWA
section
303(
c)

are
published
at
40
CFR
Part
131.
Under
these
rules,
the
minimum
elements
that
must
be
included
in
a
State's,
Territory's,
or
authorized
Tribe's
water
quality
standards
include:
use
designations
for
all
water
bodies
in
the
State,
Territory,
or
authorized
Tribe,
water
quality
criteria
sufficient
to
protect
those
use
designations,
and
an
antidegradation
policy
(
see
40
CFR
131.6).

2.
The
BEACH
Act
of
2000
The
Beaches
Environmental
Assessment
and
Coastal
Health
(
BEACH)
Act
of
2000
amended
the
CWA
in
part
by
adding
section
303(
i).
Section
303(
i)(
1)(
A)
requires
that
not
later
than
April
10,
2004,
"
each
State
having
coastal
recreation
waters
shall
adopt
and
submit
to
the
Administrator
water
quality
criteria
and
standards
for
the
coastal
recreation
waters
of
the
State
for
those
pathogens
and
pathogen
indicators
for
which
the
Administrator
has
published
criteria
under
section
304(
a)."
EPA's
Ambient
Water
Quality
Criteria
for
Bacteria
­
1986
(
EPA
440/
5­

84­
002)
is
the
relevant
criteria
document
published
by
the
Administrator
under
CWA
section
304(
a).

Section
303(
i)(
2)(
A)
requires
that,
"[
i]
f
a
State
fails
to
adopt
water
quality
criteria
and
standards
in
accordance
with
[
section
303(
i)(
1)(
A)]
that
are
as
protective
of
human
health
as
the
criteria
for
pathogens
and
pathogen
indicators
for
coastal
recreation
waters
published
by
the
Administrator,
the
Administrator
shall
promptly
propose
regulations
for
the
State
setting
forth
revised
or
new
water
quality
standards
for
pathogens
and
pathogen
indicators
described
in
[
section
303(
i)(
1)(
A)]
for
coastal
recreation
waters
of
the
State."
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The
BEACH
Act
also
added
section
502(
21)
to
the
CWA,
which
defines
"
coastal
recreation
waters"
as
"(
i)
the
Great
Lakes;
and
(
ii)
marine
coastal
waters
(
including
coastal
estuaries)
that
are
designated
by
States
under
section
303(
c)
by
a
State
for
use
for
swimming,

bathing,
surfing,
or
similar
water
contact
activities."
Section
502(
21)
explicitly
excludes
from
the
definition
of
coastal
recreation
waters
"
inland
waters;
or
waters
upstream
of
the
mouth
of
a
river
or
stream
having
an
unimpaired
natural
connection
with
the
open
sea."

B.
1986
Ambient
Water
Quality
Criteria
for
Bacteria
In
1986,
EPA
published
Ambient
Water
Quality
Criteria
for
Bacteria
 
1986.
This
document
contains
EPA's
current
recommended
water
quality
criteria
for
bacteria
to
protect
people
from
gastrointestinal
illness
in
recreational
waters,
i.
e.,
waters
designated
for
primary
contact
recreation
or
similar
full
body
contact
uses.
Primary
contact
recreation
is
typically
defined
by
States
and
Territories
to
encompass
activities
that
could
be
expected
to
result
in
the
ingestion
of,
or
immersion
in,
water,
such
as
swimming,
water
skiing,
surfing,
kayaking,
or
any
other
activity
where
immersion
in
the
water
is
likely.
The
main
route
of
exposure
to
illness­
causing
organisms
in
recreational
waters
is
through
accidental
ingestion
of
fecally­
contaminated
water
while
engaging
in
these
activities.

EPA's
water
quality
criteria
for
bacteria
are
based
on
levels
of
indicator
bacteria,
namely
Escherichia
coli
(
E.
coli)
and
enterococci,
that
demonstrate
the
presence
of
fecal
pollution.

Indicator
organisms
such
as
these
have
long
been
used
to
protect
people
from
illnesses
that
may
be
contracted
from
engaging
in
recreational
activities
in
surface
waters
contaminated
by
fecal
pollution.
These
organisms
generally
do
not
cause
illness
directly,
but
have
demonstrated
characteristics
that
make
them
good
indicators
of
fecal
contamination
and
thus
the
potential
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11
presence
of
pathogens
capable
of
causing
human
illnesses
such
as
gastroenteritis.
Gastroenteritis
is
a
term
for
a
variety
of
diseases
that
affect
the
gastrointestinal
tract
and
are
rarely
lifethreatening
Symptoms
of
the
illness
include
nausea,
vomiting,
stomachache,
diarrhea,
headache,

and
fever.
Prior
to
its
publication
of
the
1986
bacteria
criteria
document,
EPA
recommended
the
use
of
fecal
coliforms
as
an
indicator
organism
to
protect
people
from
gastrointestinal
illness
in
recreational
waters.
However,
EPA
conducted
epidemiological
studies
and
evaluated
the
use
of
several
organisms
as
indicators,
including
fecal
coliforms,
E.
coli,
and
enterococci.
EPA
subsequently
recommended
the
use
of
E.
coli
or
enterococci
for
fresh
recreational
waters
and
enterococci
for
marine
recreational
waters,
because
levels
of
these
organisms
were
more
accurate
predictors
of
acute
gastrointestinal
illness
than
levels
of
fecal
coliforms.

In
EPA's
epidemiological
studies,
E.
coli
and
enterococci
exhibited
the
strongest
correlation
to
swimming­
associated
gastroenteritis,
the
former
in
fresh
waters
only
and
the
latter
in
both
fresh
and
marine
waters
(
Ambient
Water
Quality
Criteria
for
Bacteria
­
1986,
January,

1986,
EPA
440/
5­
84­
002;
Health
Effects
Criteria
for
Fresh
Recreational
Waters,
August,
1984,

EPA
600/
1­
84­
004;
Health
Effects
Criteria
for
Marine
Recreational
Waters,
August,
1983,
EPA
600/
1­
80­
031).
In
marine
waters,
the
stronger
correlation
may
be
due
to
enterococci's
ability
to
survive
longer
than
coliforms,
similar
to
the
pathogens
of
concern.
In
addition,
fecal
coliforms
are
sometimes
detected
where
fecal
contamination
is
absent,
possibly
resulting
in
inaccurate
assessments
of
recreational
safety.
For
example,
Klebsiella
spp.,
a
bacterial
organism
that
is
part
of
the
fecal
coliform
group
but
which
is
generally
not
harmful
to
humans,
is
often
present
in
pulp
and
paper
and
textile
mill
effluents
(
Archibald,
F.,
Water
Qual.
Res.
J.
Canada
35(
1):
1­
22,
2000;

Dufour,
Journal
WPCF,
48:
872­
879)
.
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12
Table
1
contains
the
water
quality
criteria
values
for
the
protection
of
primary
contact
recreation
that
EPA
recommended
in
the
1986
bacteria
criteria
document
(
Ambient
Water
Quality
Criteria
for
Bacteria­
1986).
These
values
were
developed
based
on
the
concentrations
of
E.
coli
and
enterococci
from
EPA­
sponsored
epidemiological
studies
that
roughly
correlated
to
the
estimated
illness
rate
associated
with
EPA's
previously
recommended
fecal
coliform
criterion.

This
illness
rate
was
estimated
to
be
approximately
0.8%
of
swimmers
exposed
in
freshwater
and
1.9%
of
swimmers
exposed
in
marine
waters.
EPA's
1986
bacteria
criteria
document
indicates
the
illness
rates
are
"
only
approximate"
and
that
the
1986
values
that
appear
in
Table
1
were
based
on
these
approximations.
The
1986
bacteria
criteria
document
provides
geometric
mean
densities
(
represented
as
average
densities
over
the
swimming
season)
as
well
as
single
sample
maximum
(
SSM)
values
(
representing
an
unacceptably
high
value
for
a
single
sample).

A
geometric
mean
represents
the
central
tendency
of
a
series
of
data
points.
Using
a
geometric,
as
opposed
to
an
arithmetic,
mean
helps
to
minimize
the
effect
of
measurements
that
might
otherwise
be
considered
outliers.
The
best
way
to
interpret
a
series
of
bacterial
measurements
taken
over
a
period
of
time
is
in
comparison
to
the
geometric
mean.
With
a
large
number
of
measurements,
the
calculated
geometric
mean
is
expected
to
be
"
close"
to
the
"
true"

mean
of
bacterial
concentrations
in
the
waterbody.
In
contrast,
a
single
sample
with
a
high
value
does
not
necessarily
indicate
that
the
waterbody
as
a
whole
has
high
bacterial
levels.
The
SSM
values
in
the
1986
bacteria
criteria
document
correspond
to
probabilities
of
getting
a
particular
single
sample
result
when
the
true
mean
meets
the
criterion.
A
75%
confidence
level
value
corresponds
to
the
level
above
which
individual
sample
values
would
occur
only
25%
of
the
time
if
the
mean
level
in
the
water
body
still
meets
the
standard.
Statisticians
say
that
a
single
sample
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reading
at
this
level
indicates,
with
75%
confidence,
that
the
standard
is
not
being
met.
The
best
way
to
interpret
any
single
measurement
(
or
small
number
of
measurements)
is
in
comparison
to
the
SSM.
Selecting
a
lower
SSM
(
e.
g.,
75%)
for
comparison
to
single
measurements
will
result
in
a
more
conservative
estimate
of
whether
the
standard
is
being
met.
That
is,
it
will
set
a
relatively
low
bar
(
75%
confidence)
for
a
determination
that
the
standard
has
been
exceeded.

This
will
be
protective
of
public
health
but
may
result
in
a
greater
number
of
determinations
that
the
standard
was
violated.
In
contrast,
selecting
a
higher
SSM
(
e.
g.,
95%)
for
comparison
to
single
measurements
will
result
in
a
less
cautious
(
i.
e.,
less
protective)
decision
rule
but
greater
certainty
that
a
reading
above
the
SSM
really
does
indicate
that
bacteria
levels
in
the
waterbody
as
a
whole
exceed
the
standard.

The
1986
bacteria
criteria
document
includes
a
table
of
four
SSM
values
for
each
geometric
mean
based
on
beach
usage,
which
in
turn
are
based
on
different
confidence
levels.
In
general,
where
there
is
a
greater
potential
for
exposure
in
a
given
area,
a
higher
degree
of
protectiveness
(
i.
e.,
a
lower
bar
for
determining
an
exceedance)
is
warranted.
The
1986
bacteria
criteria
document
categorizes
the
four
SSMs
as
follows:
"
designated
bathing
beach"
for
the
75
percent
(
most
protective)
confidence
level,
"
moderate
use
for
bathing"
for
the
82
percent
confidence
level,
"
light
use
for
bathing"
for
the
90
percent
confidence
level,
and
"
infrequent
use
for
bathing"
for
the
95
percent
confidence
level.
The
lowest
SSM
was
assigned
to
designated
bathing
beach
areas
because
a
high
degree
of
caution
should
be
used
to
evaluate
the
statistical
significance
of
a
measured
single
value
above
the
criteria
for
these
areas.
The
document
does
not
specifically
describe
in
greater
detail
the
potential
use
frequency
differences
of
the
82
percent,
90
percent,
and
95
percent
confidence
levels.
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Table
1:
Criteria
for
Indicators
for
Bacteriological
Densities
Acceptable
Swimming
Associated
Gastroenteritis
Rate
per
1000
swimmers
Steady
State
Geometric
Mean
Indicator
Density
Single
Sample
Maximum
Allowable
Density
Designated
Beach
Area
(
upper
75%
C.
L.)
Moderate
Full
Body
Contact
Recreation
(
upper
82%
C.
L.)
Lightly
Used
Full
Body
Contact
Recreation
(
upper
90%
C.
L.)
Infrequently
Used
Full
Body
Contact
Recreation
(
upper
95%
C.
L.)

Freshwater
Enterococci
8
33/
100
ml(
1)
61
78
107
151
E.
coli
8
126/
100
ml(
2)
235
298
409
575
Marine
Water
Enterococci
19
35/
100
ml(
3)
104
158
276
501
Notes:
(
1)
Calculated
to
nearest
whole
number
using
equation:
(
mean
enterococci
density)
=
antilog10
((
illness
rate/
1000
people
+
6.28)
/
9.40)
(
2)
Calculated
to
nearest
whole
number
using
equation:
(
mean
E.
coli
density)
=
antilog10
((
illness
rate/
1000
people
+
11.74)
/
9.40)
(
3)
Calculated
to
nearest
whole
number
using
equation:
(
mean
enterococci
density)
=
antilog10
((
illness
rate/
1000
people
­
0.20)
/
12.17)
(
4)
Single
sample
limit
=
antilog10
(
log10
indicator
geometric
mean
density/
100
ml
+
(
factor
determined
from
areas
under
the
Normal
probability
curve
for
the
assumed
level
of
probability
*
log10
standard
deviation)).
The
appropriate
factors
for
the
indicated
one
sided
confidence
levels
are:
75%
C.
L.
­
.675
82%
C.
L.
­
.935
90%
C.
L.
­
1.28
95%
C.
L.
­
1.65
(
5)
Based
on
the
observed
log
standard
deviations
during
the
EPA
studies:
0.4
for
freshwater
E.
coli
and
enterococci;
and
0.7
for
marine
water
enterococci.
Each
jurisdiction
should
establish
its
own
standard
deviation
for
its
conditions
which
would
then
vary
the
single
sample
limit.

III.
Proposed
Criteria
for
Pathogen
Indicators
in
Coastal
Recreation
Waters
A.
Scope
of
Proposed
Rule
The
requirements
of
the
BEACH
Act
are
limited
to
"
coastal
recreation
waters,"
which
are
defined
in
CWA
section
502(
21)
as
the
Great
Lakes
and
marine
coastal
recreation
waters
(
including
coastal
estuaries)
that
are
designated
under
CWA
section
303(
c)
by
a
State
for
use
for
swimming,
bathing,
surfing,
or
similar
water
contact
activities.
The
definition
explicitly
excludes
"
inland
waters
or
waters
upstream
of
the
mouth
of
a
river
or
stream
having
an
unimpaired
natural
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15
connection
with
the
open
sea."
EPA
interprets
CWA
section
502(
21)
to
apply
only
to
those
Great
Lakes
waters
that
are
designated
for
swimming,
bathing,
surfing,
or
similar
water
contact
activities,
consistent
with
the
purpose
of
the
BEACH
Act
to
protect
the
public
from
the
health
risks
associated
with
swimming
in
polluted
water.
Therefore,
today's
proposal
applies
only
to
those
Great
Lakes
and
marine
waters
designated
by
a
State
or
Territory
for
swimming,
bathing,

surfing,
or
similar
water
contact
activities.

The
BEACH
Act
clearly
envisioned
and
intended
that
States,
Territories,
and
authorized
Tribes
with
coastal
recreation
waters
adopt
into
their
water
quality
standards
bacteria
criteria
as
protective
of
human
health
as
EPA's
1986
ambient
water
quality
criteria
for
bacteria.
Under
EPA's
water
quality
standards
regulations
at
40
CFR
Part
131,
States,
Territories,
and
authorized
Tribes
have
broad
discretion
to
designate
specific
uses
to
specific
waters.
They
are
not
required
to
designate
all
waters
for
swimming,
bathing,
surfing,
or
similar
water
contact
activities
(
i.
e.,

primary
contact
recreation),
as
long
as
they
have
conducted
a
use
attainability
analysis
that
supports
the
decision
that
full
attainment
of
CWA
section
101(
a)
uses
("
fishable/
swimmable")
is
not
feasible
for
those
waters
(
40
CFR
131.10(
g)).
For
example,
Ohio
has
designated
all
of
its
portion
of
Lake
Erie
as
"
bathing
waters."
In
contrast,
Pennsylvania
has
designated
a
portion
of
Lake
Erie
as
incidental,
or
secondary,
contact
recreation.
However,
States,
Territories,
and
authorized
Tribes
are
to
continue
to
work
towards
the
goal
of
achieving
full
attainment
of
CWA
section
101(
a)
uses
("
fishable/
swimmable")
in
these
waters.
Further,
any
waters
with
designated
uses
that
do
not
include
the
uses
specified
in
CWA
section
101(
a)(
2)
must
be
re­
examined
every
three
years
to
determine
if
any
new
information
has
become
available
(
40
CFR
131.20(
a)).
If
such
new
information
indicates
that
the
uses
specified
in
CWA
section
101(
a)(
2)
are
attainable,
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the
State,
Territory,
or
authorized
Tribe
is
required
to
revise
its
water
quality
standards
accordingly.
EPA
expects
States,
Territories,
and
authorized
Tribes
to
continue
this
process
and
revise
their
water
quality
standards
where
appropriate.

B.
Proposed
Criteria
for
Pathogen
Indicators
EPA's
Ambient
Water
Quality
Criteria
for
Bacteria
­
1986
were
developed
to
protect
primary
contact
recreation
uses
in
ambient
waters.
The
criteria
have
two
components:
a
geometric
mean,
which
has
the
most
direct
relationship
to
risk
over
the
course
of
a
recreation
season,
and
a
single
sample
maximum
(
SSM)
which
is
the
best
value
against
which
to
compare
individual
measurements.
A
geometric
mean
represents
the
central
tendency
of
a
series
of
measurements:
in
this
case,
measurements
of
bacteria
levels.
This
helps
to
minimize
the
effect
of
measurements
that
might
otherwise
be
considered
outliers.
EPA
is
proposing
a
geometric
mean
of
126/
100
ml
for
E.
coli
in
fresh
waters
and
four
different
SSMs,
which
vary
for
coastal
recreation
fresh
waters
based
on
intensity
of
use.
EPA
is
proposing
a
geometric
mean
of
35/
100
ml
for
enterococci
in
marine
waters
and
four
different
SSMs,
which
vary
for
coastal
recreation
marine
waters
based
on
intensity
of
use.
These
are
the
same
values
as
in
the
1986
bacteria
criteria
document.

Table
2.
Proposed
Ambient
Fresh
Water
Quality
Criteria
for
Bacteria
A
Indicator
B
Geometric
mean
C
Single
Sample
Maximum
(
per
100
ml)

C1
Designated
bathing
beach
(
75%
confidence
level)
C2
Moderate
use
coastal
recreation
waters
(
82%
confidence
level)
C3
Light
use
coastal
recreation
waters
(
90%
confidence
level)
C4
Infrequent
use
coastal
recreation
waters
(
95%
confidence
level)

E.
coli
126/
100
mla
235b
298b
409b
575b
Footnotes
to
table
in
paragraph
(
c)(
1):
a.
This
value
is
for
use
with
analytical
methods
1106.1
or
1600
or
any
equivalent
viable
method.
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b.
Calculated
using
the
following:
single
sample
maximum
=
geometric
mean
*
10^(
confidence
level
factor
*
log
standard
deviation),
where
the
confidence
level
factor
is:
75%:
0.68;
82%:
0.94;
90%:
1.28;
95%:
1.65.
The
log
standard
deviation
from
EPA's
epidemiological
studies
is
0.4.

Table
3.
Proposed
Ambient
Marine
Water
Quality
Criteria
for
Bacteria
A
Indicator
B
Geometric
mean
C
Single
Sample
Maximum
(
per
100
ml)

C1
Designated
bathing
beach
(
75%
confidence
level)
C2
Moderate
use
coastal
recreation
waters
(
82%
confidence
level)
C3
Light
use
coastal
recreation
waters
(
90%
confidence
level)
C4
Infrequent
use
coastal
recreation
waters
(
95%
confidence
level)

Enterococci
35/
100
mla
104b
158b
276b
501b
Footnotes
to
table
in
paragraph
(
c)(
2):
a.
This
value
is
for
use
with
analytical
methods
1103.1,
1603,
or
1604
or
any
equivalent
viable
method.
b.
Calculated
using
the
following:
single
sample
maximum
=
geometric
mean
*
10^(
confidence
level
factor
*
log
standard
deviation),
where
the
confidence
level
factor
is:
75%:
0.68;
82%:
0.94;
90%:
1.28;
95%:
1.65.
The
log
standard
deviation
from
EPA's
epidemiological
studies
is
0.7.

With
respect
to
identifying
an
acceptable
risk
level,
Ambient
Water
Quality
Criteria
for
Bacteria
­
1986
includes
an
estimate
of
the
historically
accepted
illness
rate
associated
with
the
previously
recommended
geometric
mean
value
for
the
fecal
coliform
criterion.
Based
on
ratios
of
E.
coli
and
enterococci
to
fecal
coliform
densities,
the
historically
accepted
risk
levels
for
gastrointestinal
symptoms
were
estimated
to
be
0.8%
of
swimmers
at
fresh
water
beaches
and
1.9%
of
swimmers
at
marine
beaches.
However,
the
analysis
upon
which
these
estimates
is
based
is
inherently
uncertain
because
there
was
little
correlation
between
illness
rate
and
fecal
coliform
density.
These
estimated
risk
levels
were
used
to
calculate
the
specific
bacteria
density
values
presented
in
tabular
form
in
the
1986
bacteria
criteria
document.
These
estimated
illness
rates
are
described
in
the
1986
bacteria
criteria
document
as
approximate
and
as
EPA's
best
estimates
at
the
time.
Moreover,
it
is
clear
that
there
is
a
lack
of
precision
and
uncertainty
both
in
estimating
the
actual
historically­
accepted
risk
level
and
in
translating
this
value
into
acceptable
risk
levels
for
E.
coli
and
enterococci
in
fresh
and
marine
waters.
It
is
also
clear
that
because
the
1986
bacteria
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
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18
criteria
document
was
published
before
the
BEACH
Act
added
section
303(
i)
to
the
CWA,
the
specific
values
presented
in
tabular
form
in
the
1986
bacteria
criteria
document
were
only
recommendations
representing
one
acceptable
choice
of
risk
level
to
apply
to
the
criterion.
At
the
time
the
1986
bacteria
criteria
document
was
published,
EPA
did
not
expect
that
the
specific
geometric
mean
and
SSM
values
would
establish
a
fixed
benchmark
for
assessing
the
protectiveness
of
State/
Territorial
water
quality
standards
for
bacteria.

There
is
no
a
priori
reason
to
establish
a
higher
level
of
protection
for
fresh
waters
than
for
marine
waters.
The
difference
in
acceptable
risk
levels
in
the
1986
bacteria
criteria
document
(
8
illnesses
per
1000
swimmers
in
fresh
waters
v.
19
per
1000
in
marine
waters)
was
based
solely
on
the
calculated
risk
levels
for
the
previously
recommended
criterion
of
200
fecal
coliforms
per
100
ml,
which
were
different
in
marine
and
fresh
waters.
Thus,
in
judging
whether
a
fresh
water
criterion
is
"
as
protective
of
human
health
as"
the
criteria
in
the
1986
bacteria
criteria
document,

it
has
been
suggested
that
EPA
should
consider
that
freshwater
criteria
with
risk
levels
in
the
range
between
8
and
19
illnesses
per
1000
swimmers
be
equally
protective.
However,
EPA
cannot
determine,
based
on
the
available
data
that
relate
E.
coli
and
enterococci
levels
to
illness
rates,
what
bacteria
concentration
would
correlate
with
risk
levels
over
1.0%
in
freshwater.

Therefore,
the
data
that
relate
risk
levels
to
bacteria
concentrations
in
freshwater
are
not
reliable
beyond
1.0%
risk
to
swimmers.
Recent
peer
review
of
EPA's
analysis
of
the
study
data
relating
illness
rates
to
bacteria
concentrations
supports
the
conclusion
that
the
existing
data
do
not
support
the
relationship
between
rates
beyond
the
level
of
1.0%
of
swimmers
and
their
correlating
bacteria
concentrations
(
External
Peer
Review
of
EPA
Analysis
of
Epidemiological
Data
from
EPA
Bacteriological
Studies,
February
2004).
The
peer
reviewers
said
that
EPA
should
not
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
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19
extrapolate
beyond
the
1.0%
risk
level,
based
on
the
observed
data.
Based
on
that
peer­
reviewed
information,
EPA
does
not
believe,
at
this
juncture,
that
it
can
reliably
justify
a
criterion
for
fresh
water
based
on
any
geometric
mean
or
SSM
higher
than
the
levels
associated
with
an
illness
rate
of
1.0%
of
swimmers
as
being
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.

EPA
is
considering
proposing
a
geometric
mean
for
fresh
water
that
corresponds
to
an
illness
rate
of
1.0%
of
swimmers.
EPA
solicits
comment
on
its
choice
of
illness
rate
for
calculating
the
criteria.

1.
Use
of
the
Single
Sample
Maximum
EPA
is
proposing
all
four
SSMs
included
in
the
1986
bacteria
criteria
document
for
each
geometric
mean.
The
SSM
values
allow
decision
makers
to
quantitatively
determine
when
water
quality
at
a
particular
site
may
not
be
associated
with
long­
term
protective
conditions
(
i.
e.,
when
overall
bacteria
concentrations
are
likely
to
exceed
the
protective
central
tendency).
The
1986
bacteria
criteria
document
does
not
interpret
the
meaning
of
the
term
"
single
sample
maximum".

The
most
straightforward
interpretation
is
that
it
is
a
single
value
never
to
be
exceeded.
EPA
is
soliciting
comment
on
this
interpretation.

An
alternative
option
would
be
to
allow
for
exceedances
of
the
SSM
when
making
attainment
decisions
because
bacterial
measurements
are
inherently
variable,
due
to
a
number
of
factors.
Under
this
option,
an
unacceptably
high
value
for
any
given
individual
sample
may
be
used
to
trigger
a
beach
advisory
or
closing
or
additional
monitoring,
or
it
might
be
evaluated
with
other
sample
results,
but
would
not
be
used
alone
to
determine
nonattainment
of
the
water
quality
standards
EPA
is
soliciting
comment
on
its
interpretation
of
the
term
single
sample
maximum.

EPA
recognizes
that
the
1986
bacteria
criteria
document
discusses
SSMs
solely
in
the
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
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20
context
of
beach
closures.
EPA
could
interpret
the
1986
bacteria
criteria
document
to
apply
the
SSMs
only
for
decisions
related
to
public
health
at
beaches.
Under
this
interpretation,
the
SSMs
would
be
part
of
the
water
quality
criteria,
but
only
used
for
making
beach
closure
and
opening
decisions.
In
making
public
health
decisions
currently,
States
and
Territories
generally
use
one
or
two
samples
to
make
beach
opening
or
closure
decisions.
States
and
Territories
would
use
only
the
geometric
mean
for
other
CWA
purposes,
such
as
NPDES
permitting,
TMDLs,
and
waterbody
assessments.
EPA
solicits
comment
on
this
interpretation.

The
1986
bacteria
criteria
document
describes
the
analysis
used
to
calculate
the
criteria.

EPA
conducted
a
series
of
epidemiological
studies
in
coastal
and
Great
Lakes
waters.
At
each
water
studied,
EPA
calculated
the
geometric
mean
of
the
summer
bacterial
density,
and
correlated
this
with
the
summer
average
gastrointestinal
illness
rate.
EPA
used
this
correlation
as
the
basis
of
the
geometric
mean
criterion.
Thus,
the
geometric
mean
has
the
most
direct
relationship
to
the
illness
rate.
With
this
in
mind,
EPA
could
interpret
the
phrase
"
as
protective
of
human
health
as"

the
1986
bacteria
criteria
document
to
apply
only
to
the
geometric
mean.
Under
this
interpretation,
EPA
would
promulgate
only
the
geometric
mean
in
the
final
rule.
The
SSMs
would
be
available
for
use
as
an
implementation
tool
for
making
beach
opening
and
closure
decisions
but
would
not
be
part
of
the
applicable
water
quality
standards
.
States
and
Territories
would
have
the
flexibility
to
use
the
SSM
in
any
application
of
the
water
quality
standards.
EPA
is
soliciting
comment
on
this
interpretation.

2.
Categories
of
Coastal
Recreation
Waters
Only
one
SSM
would
apply
to
each
category
of
coastal
recreation
water:
designated
bathing
beach
waters,
moderate
use
coastal
recreation
waters,
light
use
coastal
recreation
waters,
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
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21PM)
21
and
infrequent
use
coastal
recreation
waters.
In
the
1986
bacteria
criteria
document
EPA
associated
these
categories
with
increasing
confidence
level
thresholds
(
corresponding
to
decreasing
exposure
potential)
on
which
an
exceedance
determination
would
be
based.
EPA
is
proposing
the
following
definitions
for
each
category
of
waterbody:

°
Designated
bathing
beach
waters
are
those
coastal
recreation
waters
that,
during
the
recreation
season,
are
heavily­
used
or
where
a
lifeguard
or
bathhouse
facilities
or
public
parking
are
present.
States
and
Territories
may
include
any
other
waters
in
this
category
even
if
the
waters
do
not
meet
these
criteria.

°
Moderate
use
coastal
recreation
waters
are
those
coastal
recreation
waters
that
are
not
designated
bathing
beach
waters
but
typically,
during
the
recreation
season,
have
at
least
half
of
the
number
of
people
than
at
typical
designated
bathing
beach
waters
within
the
State.
States
may
also
include
light
use
or
infrequent
use
coastal
recreation
waters
in
this
category.

°
Light
use
coastal
recreation
waters
are
those
coastal
recreation
waters
that
are
not
designated
bathing
beach
waters
but
typically,
during
the
recreation
season,
have
less
than
half
of
the
number
of
people
than
at
typical
designated
bathing
beach
waters
within
the
State,
but
are
more
than
infrequently
used.
States
may
also
include
infrequent
use
coastal
recreation
waters
in
this
category.

°
Infrequent
use
coastal
recreation
waters
are
those
coastal
recreation
waters
that
are
rarely
or
occasionally
used.

Examples
of
infrequent
use
coastal
recreation
waters
might
include
waters
that
are
at
remote
locations,
difficult
to
access,
or
infrequently
used
for
recreation
due
to
commerce
or
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
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22
navigation.
States
and
Territories
could,
at
their
discretion,
place
waters
in
more
protective
categories.
For
example,
States
and
Territories
could
choose
to
provide
"
light
use"
protection
to
waters
that
might
otherwise
be
considered
"
infrequent
use"
waters.
EPA
is
soliciting
comment
on
the
proposed
definitions
of
the
four
categories,
and
describes
the
basis
for
deriving
the
definitions
in
the
following
paragraph.

The
1986
bacteria
criteria
document
describes
designated
bathing
beach
waters
as
frequently
lifeguard
protected
waters
with
parking
and
other
public
access,
and
heavily
used
by
the
public.
EPA
conducted
its
epidemiological
studies
using
these
types
of
waters.
The
1986
bacteria
criteria
document
does
not
define
or
otherwise
describe
the
other
usage
categories.
EPA
recognizes
that
in
order
for
the
public
and
regulated
community
to
understand
where
the
SSMs
apply,
the
terms
in
the
1986
bacteria
criteria
document
(
designated
bathing
beach,
moderate
use
for
bathing,
light
use
for
bathing,
and
infrequent
use
for
bathing)
should
be
defined.
EPA
reviewed
websites
in
various
fields
of
study
(
e.
g.,
meteorology,
human
health
risk
characterization,
and
urban
planning)
that
use
such
terminology
to
differentiate
intensities.
EPA
observed
that
moderate
rainfall
is
considered
to
be
about
40%
of
heavy
rainfall,
that
moderate
alcohol
consumption
is
about
50%
of
heavy
consumption,
and
that
moderate
traffic
is
about
50%

of
heavy
traffic
("
The
Effects
of
Moderate
Alcohol
Consumption
on
Mortality
After
Heart
Attack,"
www.
coloradohealthsite.
org/
CHNReports/
alcohol_
heart(
1).
html;
"
What
Constitutes
Moderate,
Significant,
and
Major
Events?,"
www.
wxrisk.
com/
Pages/
glossary_
geography.
htm;

"
The
Beaufort
Wind
Scale,"
www.
crh.
noaa.
gov/
lot/
webpage/
beaufort).
Therefore,
EPA
proposes
that
moderate
use
coastal
recreation
waters
be
defined
as
waters
that
are
50%
less
intensely
used
than
what
would
be
found
in
a
designated
bathing
beach
water.
EPA
also
observed
Deliberative
product:
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July
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2004
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that
a
light
breeze
is
considered
to
be
about
half
that
of
a
moderate
breeze,
which
led
to
EPA's
proposal
that
light
use
coastal
recreation
waters
have
50%
less
use
than
moderate
use
coastal
recreation
waters,
and
thus
25%
less
use
than
designated
bathing
beach
waters.

a.
State
Identification
of
Coastal
Recreation
Waters
by
Category
EPA
intends
in
today's
proposal
to
objectively
define
the
four
categories
so
that
the
public
can
clearly
identify
to
which
category
each
coastal
recreation
water
belongs
based
on
the
information
regarding
use
of
the
water
for
primary
contact
recreation.
EPA
does
not
have
sufficient
information
regarding
frequency
of
use
of
each
specific
coastal
recreation
water
covered
by
this
proposal
to
list
all
those
waters
in
the
rule
according
to
the
four
categories
defined
in
40
CFR
131.41(
b).
Therefore,
EPA
is
proposing
not
to
list
individual
coastal
recreation
waters
by
category
of
SSM.
EPA
recommends
that
States
and
Territories
evaluate
existing
use
information
and
identify
which
individual
coastal
recreation
waters
belong
to
each
category
and
make
this
information
publicly
available
(
e.
g.,
on
a
State's
or
Territory's
website).
Even
in
the
absence
of
such
a
listing,
EPA
believes
the
proposed
definitions
can
be
objectively
applied
when
CWA
actions
are
taken
based
on
the
proposed
rule.
A
State
or
Territory
would
be
required
to
use
the
75
percent
confidence
level
SSM
when
developing
TMDLs
for,
or
issuing
permits
to
facilities
discharging
into,
coastal
recreation
waters
that
meet
the
definition
of
designated
bathing
beach
waters.
Additionally,
a
State
or
Territory
would
be
required
to
use
an
SSM
that
is
no
less
stringent
than
the
95
percent
confidence
level
when
developing
TMDLs
for,
or
issuing
permits
to
facilities
discharging
into,
coastal
recreation
waters
that
meet
the
definition
of
infrequent
use
coastal
recreation
waters.
As
States
and
Territories
develop
TMDLs
and
issue
permits
consistent
with
the
SSMs,
the
public
would
have
the
opportunity
to
review
and
comment
upon
the
Deliberative
product:
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not
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July
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2004
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application
of
SSMs
as
part
of
the
TMDL
and
permitting
processes.
EPA
would
use
its
oversight
authority
of
CWA
section
402(
d)
to
ensure
that
States
and
Territories
apply
the
appropriateSSMs.

EPA's
National
Beach
Guidance
and
Required
Performance
Criteria
for
Grants
(
June,

2002,
EPA­
823­
B­
02­
004)
outlined
elements
that
States
and
Territories
with
BEACH
Act
implementation
grants
are
to
consider
in
developing
tiered
monitoring
plans.
States
with
BEACH
Act
implementation
grants
are
required
to
tier
their
beaches
according
to
potential
risk
to
human
health
and
beach
use.
The
monitoring
frequency
and
methodology
would
likely
differ
depending
on
how
a
beach
is
tiered.
Because
most
coastal
States
and
Territories
are
recipients
of
BEACH
Act
implementation
grants,
States
and
Territories
could
use
their
existing
beach
tiering
process
as
a
source
of
information
for
determining
frequency
in
defining
a
coastal
recreation
water
for
purposes
of
determining
the
applicable
SSM.
EPA
is
soliciting
comment
on
this
approach.

b.
Alternative
Options
for
Categorization
of
Coastal
Recreation
Waters
EPA
recognizes
that
some
States
and
Territories
may
not
have
enough
data
regarding
the
intensity
of
the
use
of
their
coastal
recreation
waters
to
easily
and
quickly
categorize
them
according
to
the
four
categories
specified
in
the
proposed
rule.
For
example,
some
States
have
designated
bathing
beach
waters,
but
do
not
further
categorize
the
remainder
of
their
coastal
recreation
waters
as
to
intensity
of
use.
Therefore,
EPA
is
considering
another
approach
by
which
a
final
rule
would
include
only
two
SSMs
for
coastal
recreation
waters:
the
75
percent
confidence
level
to
all
designated
bathing
beaches
and
a
single
other
confidence
level
(
the
82
percent,
90
percent,
or
95
percent
confidence
level
SSM)
to
all
other
coastal
recreation
waters.
If
EPA
promulgates
this
approach
in
the
final
rulemaking,
the
rule
would
include
two
columns
for
SSMs,
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
(
1:
21PM)
25
one
column
for
designated
bathing
beach
waters
and
the
other
column
for
all
other
coastal
recreation
waters.
EPA
would
select
the
specific
percent
confidence
levels
from
the
1986
bacteria
criteria
document
based
on
comments
received
during
the
public
comment
period.
In
addition,

the
final
rule
would
not
include
the
definitions
for
moderate,
light,
and
infrequent
use
coastal
recreation
waters.
Rather,
the
final
rule
would
contain
the
proposed
definition
of
designated
bathing
beach
waters
where
the
75
percent
confidence
level
would
apply.
In
all
waters
that
are
not
designated
beach
waters
the
other
SSM
would
apply.
Similar
to
the
previous
option,
in
implementing
SSMs,
States
and
Territories
would
apply
the
designated
bathing
beach
SSM
consistent
with
the
proposed
definition
of
designated
bathing
beach
waters
in
40
CFR
131.41(
b).

EPA
expects
that
a
State
or
Territory
would
use
the
75
percent
confidence
level
SSM
when
developing
TMDLs
for,
or
issuing
permits
to
facilities
discharging
into,
coastal
recreation
waters
that
meet
the
definition
of
designated
bathing
beach
waters.
As
States
and
Territories
develop
TMDLs
and
issue
permits
consistent
with
the
SSMs,
the
public
would
have
the
opportunity
to
review
and
comment
upon
the
application
of
SSMs
as
part
of
the
TMDL
and
permitting
processes.
EPA
would
use
its
oversight
authority
of
CWA
section
402(
d)
to
ensure
that
States
and
Territories
appropriately
apply
the
SSMs.
EPA
is
soliciting
comment
on
this
approach.

EPA
is
also
considering
promulgating
only
the
75
percent
confidence
level
SSM
that
would
apply
to
all
coastal
recreation
waters
of
the
States
and
Territories
included
in
the
final
rulemaking.
This
approach
applies
the
most
stringent
SSM
for
all
recreation
waters
by
assuming
all
coastal
recreation
waters
could
be
designated
bathing
beach
waters.
This
approach
eliminates
the
need
to
delineate
which
SSM
applies
to
specific
coastal
recreation
waters.
Seven
States
have
already
adopted
the
1986
bacteria
criteria
for
some
or
all
of
their
coastal
recreation
waters
using
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
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26
this
approach.
However,
the
1986
bacteria
criteria
document
clearly
recognized
that
"
one
size
does
not
fit
all,"
and
that
it
is
reasonable
to
have
different
SSMs
depending
on
use
intensity.

Nonetheless,
EPA
is
soliciting
comment
on
this
approach.

c.
Application
of
EPA's
Proposed
SSMs
EPA's
proposed
SSMs
apply
to
categories
based
on
definitions
of
intensity,
and
EPA
is
proposing
that
they
be
interpreted
on
an
intrastate
basis
(
i.
e.,
the
comparison
of
frequency
of
use
would
be
made
relative
to
only
the
waters
within
that
State).
Using
this
approach,
a
State
or
Territory
would
categorize
its
most
frequently
used
coastal
recreation
waters
as
designated
bathing
beach
waters
and
all
others
in
comparison
to
those.
An
alternative
option
that
EPA
is
considering
is
for
States
and
Territories
to
apply
these
categories
to
particular
waters
using
interstate
comparisons.
For
example,
the
number
of
people
at
beaches
in
a
State
with
a
cooler
climate
(
e.
g.,
Washington)
may
be
considerably
less
than
the
number
of
people
at
beaches
in
a
State
with
a
much
warmer
climate
(
e.
g.,
Florida).
As
a
result,
the
number
of
people
at
what
a
cooler
State
would
designate
as
a
"
moderate
use
coastal
recreation
water"
may
be
more
characteristic
of
the
number
of
people
at
an
"
infrequent
use
coastal
recreation
water"
for
a
warmer
State.
States
and
Territories
could
apply
these
definitions
so
as
to
achieve
a
consistent
level
of
protection
at
beaches
in
the
same
category
nationally.
However,
to
do
so,
States
and
Territories
would
need
national
beach
use
information
to
be
able
to
categorize
their
coastal
recreation
waters.
EPA
is
not
aware
that
this
information
is
available.
EPA
is
soliciting
comment
on
whether
these
definitions
should
be
applied
using
either
an
intrastate
or
national
comparison
of
frequency
of
use
or
to
give
States
and
Territories
the
option
to
choose
the
basis
for
comparison.

EPA
also
solicits
comment
on
where
information
on
beach
usage
may
be
found
and
whether
it
is
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
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21PM)
27
appropriate
for
use
in
applying
the
definitions.
EPA
is
also
seeking
comment
on
the
potential
consequences
of
a
nationally­
based
comparison
in
States
with
cooler
climates.

d.
State
Calculation
of
Site­
specific
SSMs
EPA
is
proposing
SSMs
based
on
the
75,
82,
90,
and
95
percent
confidence
levels
and
is
proposing
to
include
in
the
rule
the
equation
to
calculate
site­
specific
SSMs.
Bacteria
measurements
are
typically
highly
variable
from
day
to
day.
As
the
SSMs
are
derived
based
on
a
distribution
around
a
central
tendency,
the
standard
deviation
of
measurements
plays
an
important
role
in
the
width
of
that
distribution.
The
standard
deviations
observed
in
EPA's
epidemiological
studies
may
not
be
the
same
as
that
for
a
particular
waterbody.
Therefore,
EPA
encourages
States
and
Territories
to
collect
enough
data
to
calculate
site­
specific
standard
deviations.
EPA
recognizes
that
States
and
Territories
might
not
have
the
data
to
calculate
their
own
standard
deviation;
in
such
a
case,
those
States
and
Territories
would
be
required
to
use
EPA's
calculated
SSMs.

EPA
is
proposing
to
require
that
the
data
set
needed
to
provide
a
site­
specific
standard
deviation
used
for
calculating
a
revised
SSM
contain
at
least
thirty
samples
for
a
single
beach
season
(
see
40
CFR
131.41(
c)(
3)).
EPA
recognizes
that
the
1986
bacteria
criteria
document
contemplates
use
of
a
site­
specific
log
standard
deviation,
but
notes
that
the
document
does
not
provide
any
information
to
guide
States
and
Territories
in
developing
a
site­
specific
log
standard
deviation.
The
1986
bacteria
criteria
document
references
the
log
standard
deviations
observed
in
EPA
epidemiological
studies,
but
does
not
specify
the
number
of
values
used
to
compute
the
log
standard
deviations.
EPA
recognizes
that
the
number
of
values
has
an
effect
on
the
confidence
one
places
on
the
standard
deviation.
For
example,
in
the
Technical
Support
Document
for
Water
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
28
Quality­
based
Toxics
Control
(
EPA/
505/
2­
90­
001,
March
1991,
revised
June
1992)
EPA
displays
the
effect
of
the
number
of
values
on
the
precision
of
the
calculated
coefficient
of
variation
(
standard
deviation
divided
by
the
mean).
This
display
shows
that
for
one
coefficient
of
variation,

that
the
90
percent
confidence
interval
around
the
standard
deviation
is
+/­
62%
for
five
values,

+/­
42%
for
10
values,
+/­
30%
for
20
values,
and
+/­
25%
for
30
values,
with
the
confidence
intervals
not
changing
much
for
more
than
30
values.
(
See
Technical
Support
Document
for
Water
Quality­
based
Toxics
Control,
page
55.)

EPA
believes
that
when
a
State
or
Territory
calculates
an
SSM
using
a
site­
specific
log
standard
deviation,
the
State
or
Territory
should
use
a
site­
specific
standard
deviation
that
is
based
on
a
large
enough
sample
size.
Ideally,
the
sample
size
is
large
enough
that
the
"
Central
Limit
Theorem"
holds.
The
central
limit
theorem
demonstrates
that
in
large
enough
samples,
the
distribution
of
a
sample
mean
approximates
a
normal
curve
regardless
of
the
shape
of
the
distribution
from
which
it
is
sampled.
The
larger
the
sample
size,
the
better
the
approximation
to
the
normal
distribution.
A
sample
size
of
thirty
is
generally
accepted
by
statisticians
as
the
smallest
sample
size
where
the
sample
standard
deviation
will
approximate
the
true
standard
deviation
in
a
statistically
meaningful
way
(
Walpole,
R.
E.,
Probability
and
Statistics
for
Engineers
and
Scientists,
1989).
Therefore,
EPA
believes
that
States
and
Territories
should
use
at
least
thirty
samples
to
compute
the
site­
specific
log
standard
deviation.
EPA
recognizes
that
a
data
set
of
30
samples
represents
a
significant
amount
of
data
for
States
and
Territories
to
collect.
EPA
also
recognizes
that
it
recommended
in
the
Technical
Support
Document
for
Water
Quality­
based
Toxics
Control
that
permit
writers
use
at
least
10
data
points
for
calculating
site­
specific
coefficients
of
variations
for
effluents
when
developing
permit
limits.
EPA
solicits
comments
on
Deliberative
product:
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July
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what
constitutes
an
adequate
data
set
for
calculating
site­
specific
SSMs
and
whether
EPA
should
specify
a
minimum
data
requirement
in
the
final
rule
[
DOES
THIS
SUFFICIENTLY
COVER
A
TIME
PERIOD?].

3.
Choice
of
Pathogen
Indicator
for
Fresh
Coastal
Recreation
Waters
EPA's
1986
bacteria
criteria
document
shows
that
either
enterococci
or
E.
coli
is
an
acceptable
indicator
in
fresh
waters.
EPA
is
proposing
E.
coli
for
all
Great
Lakes
States
with
coastal
recreation
waters
because
it
is
consistent
with
the
1986
bacteria
criteria
and
because
all
Great
Lakes
States
have
either
adopted
or
are
in
the
process
of
adopting
E.
coli
as
a
criterion
into
their
water
quality
standards.
Should
a
Great
Lakes
State
express
a
preference
for
enterococci
rather
than
E.
coli
before
EPA
promulgates
the
final
rule,
EPA
would
promulgate
the
equivalent
enterococci
values
for
that
State's
fresh
coastal
recreation
waters.
EPA
is
also
soliciting
comment
on
whether
it
would
be
more
appropriate
to
promulgate
both
E.
coli
and
enterococci
criteria
for
Great
Lakes
States
and
allow
each
State
to
choose
which
indicator
to
apply
to
its
coastal
recreation
waters
at
the
time
of
implementation.

C.
Applicability
of
the
Proposed
Rule
1.
Applies
in
Addition
to
any
State/
Territory
Criteria
Today's
proposed
Federal
criteria
do
not
replace
existing
bacteria
criteria
for
coastal
recreation
waters
already
adopted
(
and
for
those
adopted
after
May
30,
2000,
approved
by
EPA)

by
States
and
Territories
included
in
this
proposal.
Rather,
today's
proposed
criteria
apply
in
addition
to
any
other
existing
CWA­
effective
criteria
for
coastal
recreation
waters
already
adopted
(
and
for
those
adopted
after
May
30,
2000,
approved
by
EPA)
by
applicable
States
and
Territories.
States
and
Territories
included
in
today's
proposed
rule
do
not
have
criteria
Deliberative
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July
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consistent
with
CWA
section
303(
i)
that
are
effective
for
CWA
purposes.
For
these
States
and
Territories,
this
would
mean
that
permitting
under
the
National
Pollutant
Discharge
Elimination
System
(
NPDES),
as
well
as
monitoring
and
assessment
based
on
applicable
CWA
water
quality
standards,
would
need
to
be
based
on
the
applicable
standards
for
bacteria
in
the
final
rule,
in
addition
to
any
other
applicable
standards
for
bacteria
previously
adopted
by
the
State
or
Territory.
This
approach
would
ensure
that,
where
commercial
shellfishing
and
primary
contact
recreation
occur
in
the
same
coastal
recreation
waters,
both
uses
will
be
adequately
protected
by
standards
for
fecal
coliform
and
either
E.
coli
or
enterococci.
The
dual
sets
of
bacteria
criteria
also
will
enable
regulatory
decisions
and
actions
to
continue
while
collecting
data
for
the
newly
adopted
E.
coli
or
enterococci
criteria.
For
States
and
Territories
included
in
today's
proposal,

EPA
expects
that
States
and
Territories
will
be
actively
collecting
data
on
E.
coli
and/
or
enterococci
and
working
to
incorporate
E.
coli
and/
or
enterococci
water
quality
criteria
into
their
water
quality
programs,
e.
g.,
NPDES,
CWA
section
305(
b),
and
CWA
section
303(
d)
programs.

EPA
recognizes
that
some
States
and
Territories
are
in
the
process
of
adopting
water
quality
standards
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.
Once
a
State
or
Territory
submits
the
adopted
standards
to
EPA,
the
Agency
will
use
CWA
sections
303(
c)
and
303(
i)
to
guide
its
review
of
the
standards.
Water
quality
standards
do
not
become
effective
for
Clean
Water
Act
purposes
until
EPA
approves
them
(
40
CFR
131.21).
Once
EPA
approves
a
State's
or
Territory's
standards
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
EPA
would
remove
that
State
or
Territory
from
40
CFR
131.41.
However,
there
will
be
some
indefinite
period
of
time
between
EPA's
approval
and
EPA
removing
the
State
or
Territory
from
40
CFR
131.41.
As
a
result,
EPA
is
proposing
rule
language
which
would
make
the
EPA­
Deliberative
product:
Do
not
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or
quote
July
8,
2004
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approved
bacteria
criteria
in
State
or
Territorial
water
quality
standards
effective
for
Clean
Water
Act
purposes
upon
their
approval
and
EPA's
promulgated
criteria
would
no
longer
apply.
See
40
CFR
131.41(
d)(
1).
EPA
would
still
propose
to
remove
the
State
or
Territory
from
40
CFR
131.41
but
that
process
would
not
delay
the
approved
State's
criteria
becoming
the
sole
applicable
criteria.
EPA
solicits
comment
on
this
approach
of
making
the
approved
State
criteria
the
applicable
criteria
without
first
undertaking
APA
rulemaking
to
amend
the
Federal
rule.

2.
Role
of
State/
Territorial
General
Rules
of
Applicability
Section
131.41(
d)(
2)
provides
that
the
Federal
criteria
in
today's
rule
would
be
subject
to
States'
general
rules
of
applicability
in
the
same
way
and
to
the
same
extent
as
are
other
Federally­
adopted
or
State­
adopted
numeric
criteria
for
coastal
recreation
waters.
For
example,
if
State
or
Territorial
regulations
would
authorize
mixing
zones
in
deriving
effluent
limitations
for
discharges
of
bacteria
to
coastal
recreation
waters,
such
regulations
would
apply
to
permit
limitations
implementing
the
criteria
in
today's
rule.
As
another
example,
some
State's
or
Territory's
regulations
specify
the
dilution
equations
used
to
develop
TMDLs
or
calculate
permit
limits;
such
regulations
would
apply
using
the
criteria
proposed
in
today's
rule.
EPA
is
requesting
comment
on
this
approach.

IV.
EPA
Review
of
State
and
Territorial
Standards
A.
How
Did
EPA
Decide
Which
States
and
Territories
to
Include
in
Today's
Proposed
Rule?

As
required
by
CWA
section
303(
i)(
1)(
A),
EPA
evaluated
the
water
quality
standards
for
bacteria
for
all
35
coastal
States
and
Territories
using
five
considerations
to
determine
whether
the
water
quality
standards
are
as
protective
of
human
health
as
the
Ambient
Water
Quality
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
32
Criteria
for
Bacteria
 
1986.
If
a
State's
or
Territory's
water
quality
standards
for
bacteria
for
coastal
recreation
waters
are
as
protective
of
human
health
as
the
1986
bacteria
criteria,
EPA
is
proposing
to
not
include
the
State
or
Territory
in
the
final
rule.

1.
Are
the
Standards
Based
on
EPA's
Recommended
Indicators?

EPA
interprets
CWA
section
303(
i)(
1)(
A)
to
require
that
States
and
Territories
must
adopt
and
submit
water
quality
criteria
for
enterococci
in
marine
waters
and
either
enterococci
or
E.
coli
in
fresh
waters.
Section
303(
i)(
1)(
A)
requires
that
States
and
Territories
submit
criteria
"...
for
the
pathogens
and
pathogen
indicators
for
which
the
Administrator
has
published
criteria
under
section
304(
a)."
EPA's
Ambient
Water
Quality
Criteria
for
Bacteria­
1986
is
the
CWA
section
304(
a)
criteria
referred
to
in
CWA
section
303(
i)(
1)(
A).
The
Ambient
Water
Quality
Criteria
for
Bacteria
­
1986
recommended
the
use
of
E.
coli
and
enterococci
as
pathogen
indicators
for
fresh
waters
and
enterococci
for
marine
waters.
This
represented
a
major
shift,
as
fecal
coliform
had
historically
been
the
preferred
indicator
of
fecal
matter
in
coastal
waters.
As
described
in
Ambient
Water
Quality
Criteria
for
Bacteria
­
1986,
EPA
does
not
believe
that
fecal
coliform
is
a
reliable
indicator
of
human
illness
risk
from
full
body
contact
recreation
in
coastal
recreation
waters.
Therefore,
EPA
believes
that
any
State
or
Territory
with
fecal
coliform
as
the
only
bacteria
criterion
for
some
or
all
of
its
coastal
recreation
waters
is
not
fully
compliant
with
the
BEACH
Act
and
has
thus
included
it
in
today's
proposal.
EPA
solicits
comment
on
its
interpretation
of
303(
i).
If
the
commenter
disagrees
that
States
and
Territories
must
adopt
criteria
for
E.
coli
or
enterococci,
EPA
requests
that
the
commenter
address
what
type
and
amount
of
information
should
be
sufficient
for
EPA
to
determine
that
fecal
coliform
(
or
any
other
pathogen
indicator)
is
as
protective
of
human
health
as
the
1986
bacteria
criteria.
EPA
also
solicits
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
33
comment
on
its
assessment
of
each
State's
and
Territory's
standards.

2.
Are
the
Standards
for
E.
coli
and
Enterococci
Derived
from
a
Scientifically­
Defensible
Methodology
that
Links
them
Quantitatively
to
an
Acceptable
Risk
Level?

States
and
Territories
have
the
flexibility
to
determine
an
acceptable
risk
level
within
the
context
of
the
statutory
requirement
in
CWA
section
303(
i)
that
their
water
quality
standards
be
"
as
protective
of
human
health
as"
the
1986
bacteria
criteria.
That
flexibility
is
constrained
by
the
bounds
of
acceptable
risk
articulated
by
EPA
in
Ambient
Water
Quality
Criteria
for
Bacteria­

1986.
However,
as
discussed
in
the
legislative
history
of
the
BEACH
Act,
a
State's
criteria
may
be
as
protective
of
human
health
as
the
1986
bacteria
criteria
document
"
without
being
numerically
equivalent"
but
the
criteria
would
have
to
be
scientifically
defensible.
(
S.
Rep.
No.

106­
366,
at
4
(
2000)).

Section
III.
B.
of
the
preamble
explains
that
the
risk
levels
in
the
1986
bacteria
criteria
document
for
gastrointestinal
symptoms
were
0.8%
of
swimmers
at
fresh
water
beaches
and
1.9%

of
swimmers
at
marine
beaches.
These
estimated
illness
rates
are
described
in
the
1986
bacteria
criteria
document
as
approximate
and
as
EPA's
best
estimates
at
the
time.
Section
III.
B.
of
the
preamble
explains
why
EPA
cannot
determine,
based
on
the
available
data
that
relate
E.
coli
and
enterococci
levels
to
illness
rates,
what
bacteria
concentration
would
correlate
with
risk
levels
over
1.0%
in
freshwater,
and
why
the
data
that
relate
risk
levels
to
bacteria
concentrations
in
freshwater
are
not
reliable
beyond
1.0%
risk
to
swimmers.
EPA
solicits
comment
on
its
acceptance
of
criteria
associated
with
risk
levels
up
to
1.0%
in
freshwater.

3.
Do
the
Standards
Include
Appropriate
SSMs?

In
the
1986
bacteria
criteria
document,
EPA
recommended
that
States
and
Territories
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
34
adopt
appropriate
SSM
values
that
correspond
to
specific
coastal
recreation
waters
(
e.
g.,
75
percent
confidence
level
for
designated
bathing
beaches,
82
percent
confidence
level
for
moderate
use
coastal
recreation
waters,
etc.).
Tables
2
and
3
in
Section
III.
B
include
qualitative
descriptors
of
beach
usage
associated
with
different
confidence
levels.

EPA's
Ambient
Water
Quality
Criteria
for
Bacteria­
1986
also
recommends
that
States
and
Territories
use
a
site­
specific
log
standard
deviation
in
calculating
the
SSM
in
recognition
of
the
possibility
that
States
and
Territories
may
observe
significant
differences
in
the
log
standard
deviation
of
bacterial
measurements.
The
1986
bacteria
criteria
document
explicitly
recommends
that
States
and
Territories
base
the
SSM
values
on
a
site­
specific
log
standard
deviation
or,
if
site
data
are
insufficient,
to
use
the
values
EPA
observed
in
its
studies.
EPA
believes
that
States
and
Territories
should
not
be
required
to
rely
on
frequency
distributions
observed
in
EPA's
epidemiological
studies
when
sufficient
site­
specific
data
are
available.
In
determining
whether
State
and
Territory
bacteria
criteria
are
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
EPA
proposes
to
evaluate
whether
the
data
set
is
robust
enough
to
adequately
characterize
the
distribution.
If
a
State
or
Territory
chooses
not
to
collect
adequate
data
and
not
calculate
site­
specific
SSM
values,
the
State/
Territory
would
need
to
use
the
standard
deviations
from
EPA's
studies
in
Ambient
Water
Quality
Criteria
for
Bacteria­
1986.

EPA
reviewed
State
and
Territorial
submissions
of
CWA
section
303(
i)
standards
for
coastal
recreation
waters
for
the
adoption
of
both
a
geometric
mean
and
an
SSM
value.
Because
the
criteria
are
used
for
several
purposes
under
the
CWA,
adoption
of
both
a
geometric
mean
and
an
SSM
value
gives
States
and
Territories
the
necessary
components
to
implement
bacteria
criteria
when
developing
water
quality­
based
effluent
limits,
determining
whether
a
waterbody
is
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
35
attaining
its
water
quality
standards,
and
issuing
beach
notifications
and
advisories.
For
example,

the
SSM
value
gives
States
and
Territories
a
practical
tool
for
making
daily
decisions
to
open
or
close
beaches.
In
contrast,
a
geometric
mean
gives
States
and
Territories
a
practical
tool
for
assuring
the
appropriate
level
of
treatment
at
NPDES­
regulated
facilities
to
protect
human
health
over
the
long
term.

EPA
proposes
to
consider
water
quality
standards
for
bacteria
for
coastal
recreation
waters
to
be
as
protective
of
human
health
as
Ambient
Water
Quality
Criteria
for
Bacteria
 
1986
if
they
include
at
least
one
SSM
and
if
designated
bathing
areas
have
an
SSM
based
on
at
least
the
75
percent
confidence
level.
EPA
reviewed
State
and
Territorial
standards
for
SSM
values,
and
found
that
many
States
and
Territories
used
"
designated
beach
area"
as
a
designation
for
a
subset
of
their
primary
contact
recreation
waters
and
assigned
the
75
percent
confidence
level
to
those
water
bodies,
while
assigning
the
95
percent
confidence
level
to
all
other
water
bodies.
Other
States
and
Territories
had
three
categories,
while
other
States
and
Territories
only
had
one.
EPA
solicits
comments
on
this
approach
for
evaluating
State
and
Territory
SSM
values
in
relation
to
the
requirements
of
the
BEACH
Act.

4.
Do
the
Standards
Exempt
Fecal
Contamination
from
Non­
Human
Sources?

The
Ambient
Water
Quality
Criteria
for
Bacteria­
1986
included
a
background
discussion
of
non­
human
sources
under
the
heading
"
Limitations
and
Extrapolations
of
Criteria."
The
text
of
the
1986
bacteria
criteria
document
recommends
that
States
and
Territories
apply
the
E.
coli
and
enterococci
criteria
to
all
full
body
contact
recreation
waters
unless
(
1)
sanitary
and
epidemiological
studies
show
the
sources
of
the
indicator
bacteria
to
be
non­
human,
and
(
2)
the
indicator
densities
are
not
indicative
of
a
health
risk
to
those
swimming
in
such
waters.
CWA
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
36
section
303(
i)
provides
that
if
a
State
or
Territory
fails
to
adopt
standards
"
that
are
as
protective
of
human
health
as
the
criteria
for
pathogens
and
pathogen
indicators
for
coastal
recreation
waters
published
by
the
Administrator,"
EPA
must
promptly
propose
water
quality
standards
for
pathogens
and
pathogen
indicators.
In
reviewing
State
or
Territorial
water
quality
standards
to
determine
whether
the
bacteria
criteria
are
"
as
protective
of
human
health
as"
EPA's
1986
bacteria
criteria
document,
EPA
examined
whether
the
State
or
Territorial
bacteria
criteria
exempted
non­
human
sources.
If
a
State's
or
Territory's
water
quality
standards
included
such
an
exemption,
EPA
looked
to
see
whether
that
exemption
has
the
same
basis
as
that
presented
in
the
1986
bacteria
criteria
document,
namely,
that
sanitary
and
epidemiological
studies
show
the
sources
are
non­
human
and
that
the
bacterial
densities
are
not
indicative
of
a
health
risk
to
those
swimming
in
such
waters.
EPA
is
including
in
today's
proposal
those
States
and
Territories
where
the
criteria
include
exemptions
for
non­
human
sources
that
are
inconsistent
with
the
plain
language
of
EPA's
1986
bacteria
criteria
document,
as
described
above.

EPA's
approach
in
developing
this
proposed
rule
has
been
to
rely
as
much
as
possible
on
the
actual
language
in
the
1986
bacteria
criteria
document.
EPA
has
taken
this
approach
because
CWA
section
303(
i)(
2)(
A)
requires
EPA
to
promptly
propose
criteria
for
States
and
Territories
that
are
"
as
protective
of
human
health
as"
EPA's
1986
bacteria
criteria
in
cases
where
a
State
or
Territory
has
failed
to
do
so.
However,
EPA's
scientific
understanding
of
pathogens
and
pathogen
indicators
has
evolved
since
1986.
As
a
result,
EPA
has,
over
the
course
of
the
last
18
years,
applied
its
new
scientific
understanding
to
the
formulation
of
policy
in
the
area
of
how
non­
human
sources
are
addressed
in
water
quality
standards.
For
example,
in
EPA's
1994
Water
Quality
Standards
Handbook,
EPA
articulated
a
policy
that
States
and
Territories
may
apply
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
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21PM)
37
water
quality
criteria
for
bacteria
to
waterbodies
designated
for
recreation
with
the
rebuttable
presumption
that
the
indicators
show
the
presence
of
human
fecal
contamination.
This
1994
policy
stated:

States
may
apply
bacteriological
criteria
sufficient
to
support
primary
contact
recreation
with
a
rebuttable
presumption
that
the
indicators
show
the
presence
of
human
fecal
pollution.
Rebuttal
of
this
presumption,
however,
must
be
based
on
a
sanitary
survey
that
demonstrates
a
lack
of
contamination
from
human
sources.

The
basis
for
this
option
is
the
absence
of
data
demonstrating
a
relationship
between
high
densities
of
bacteriological
water
quality
indicators
and
increased
risk
of
swimming­
associated
illness
in
animal­
contaminated
waters.

In
short,
under
this
policy,
a
State
or
Territory
could
justify
a
decision
not
to
apply
the
criteria
to
a
particular
waterbody
when
bacterial
indicators
were
found
to
be
of
animal
origin.
EPA
is
soliciting
comment
on
a
second
approach
that
uses
the
rebuttable
presumption
approach
articulated
in
the
1994
Handbook
to
be
"
as
protective
of
human
health
as"
EPA's
1986
bacteria
criteria.
This
approach
would
require
States
and
Territories
to
presume
that
the
source
of
E.
coli
or
enterococci
is
of
human
origin
unless
a
sanitary
survey
demonstrates
a
lack
of
contamination
from
human
sources.
This
approach
would
effectively
allow
for
the
exclusion
of
any
animal
sources
if
a
State
or
Territory
can
demonstrate
that
the
source
of
contamination
is
not
human
waste.

Some
recent
studies
suggest
there
may
be
some
risk
posed
to
humans
as
a
result
of
exposure
to
non­
human
fecal
contamination,
particularly
those
animal
sources
with
which
humans
regularly
come
into
contact,
i.
e.,
livestock
and
other
domestic
animals.
Livestock,
domestic
pets,
Deliberative
product:
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quote
July
8,
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38
and
wildlife
are
carriers
of
human
pathogens
and
can
transmit
these
pathogens
to
surface
waters
as
well
as
contribute
significant
numbers
of
indicator
bacteria
to
waterbodies
(
Centers
for
Disease
Control
and
Prevention
Morbidity
and
Mortality
Report
Surveillance
for
Waterborne
Disease
Outbreaks,
1993,
1996,
1998,
2000;
Waterborne
Pathogens
in
Agricultural
Watersheds,
USDA,

June
2000).

Outbreaks
of
enterohemorrhagic
E.
coli
O157:
H7,
Salmonella,
Giardia,
and
Cryptosporidium
are
frequently
of
animal
origin.
Incidents
where
these
pathogens
have
been
spread
to
humans
through
water
have
been
documented
in
recent
years.
In
the
case
of
E.
coli
O157:
H7,
several
cases
have
been
cited
in
which
fecal
contamination
from
animals
was
the
probable
source
of
the
pathogen.
The
most
prominent
examples
include
contamination
of
water
supplies,
including
an
outbreak
in
Alpine,
Wyoming,
in
June,
1998,
affecting
157
people,
and
a
major
outbreak
in
Walkerton,
Ontario,
in
May
and
June
of
2000
causing
more
than
2,300
people
to
become
ill
and
causing
seven
deaths
(
Olsen,
S.
J.,
CDC
Emerging
Infectious
Diseases,
Vol.
8,

No.
4,
April
2002;
CDC
Morbidity
and
Mortality
Weekly
Report,
2000;
Ontario's
Ministry
of
the
Attorney
General,
2000).
In
the
Alpine,
Wyoming
case,
contamination
by
wildlife
of
the
community
water
supply
is
the
suspected
source,
and
in
Walkerton,
Ontario,
heavy
rains
causing
agricultural
runoff
to
leak
into
city
wells
is
suspected.
The
1993
Milwaukee
Cryptosporidium
outbreak
is
a
well­
known
example
of
water
supply
contamination
that
resulted
in
403,000
illnesses
and
approximately
100
deaths.
The
source
of
the
oocysts
was
not
identified,
but
suspected
sources
include
agricultural
runoff
from
dairies
in
the
region,
wastewater
from
a
slaughterhouse
and
meat
packing
plant,
and
municipal
wastewater
treatment
plant
effluent
(
Casman,
E.
A.,
Interstate
Commission
on
the
Potomac
River
Basin
Report
No.
96­
6,
1996;
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39
USDA
National
Animal
Health
Monitoring
System
Report:
Cryptosporidium
parvum
Outbreak,

1993).
In
addition,
Cryptosporidium
was
the
known
cause
of
15
other
outbreaks
associated
with
drinking
and
recreational
water
affecting
5,040
individuals
in
the
U.
S.
between
1991
and
1994
(
Gibson,
C.
J.,
Parasitology
117(
Supp.):
S205­
S212,
1998).
While
many
of
the
reported
outbreaks
have
occurred
through
the
consumption
of
contaminated
drinking
water,
other
incidences
of
E.
coli
O157:
H7
infection
from
exposure
to
surface
waters
have
been
documented
(
CDC
Morbidity
and
Mortality
Weekly
Report,
2000,
2002).
While
non­
human
sources
are
capable
of
transmitting
pathogens
that
can
cause
the
specific
kinds
of
gastrointestinal
illness
identified
in
EPA's
original
epidemiological
studies,
the
specific
risk
from
these
sources
has
not
been
fully
determined.

The
risk
presented
by
fecal
contamination
of
waters
by
non­
human
sources
is
possibly
less
significant
than
the
risk
presented
by
fecal
contamination
of
waters
by
human
sources.
However,

the
increasing
number
of
cases
such
as
those
described
above,
in
which
animals
are
suspected
as
being
the
likely
cause
of
the
contamination
and
resulting
illness,
present
a
case
for
not
exempting
these
sources
where
human
contact
or
consumption
are
likely
to
occur.
In
addition,
because
the
presence
of
bacterial
indicators
provides
evidence
of
fecal
pollution,
high
levels
of
these
indicator
organisms
originating
from
animal
sources
may
also
indicate
the
presence
of
pathogens
capable
of
causing
other
human
illnesses
in
addition
to
acute
gastroenteritis.

Animals
are
more
likely
to
carry
or
be
infected
with
human
pathogens
when
those
animals
are
in
close
proximity
to
humans
and
their
waste.
The
closer
the
association
between
animals
and
humans,
the
more
likely
it
is
that
human
pathogens
will
pass
back
and
forth
between
humans
and
animals.
The
more
crowded
an
animal
herd,
the
more
likely
it
is
that
human
pathogens
will
be
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shared
between
animals
of
the
herd.
These
pathogens
are
transmitted
to
others
in
the
herd
because
of
the
direct
contact
between
animals
and
their
fecal
matter.
Fecal
contamination
from
these
infected
herds,
unless
sufficiently
treated
or
contained,
can
find
its
way
into
surface
or
ground
waters
and
present
a
potential
exposure
route
for
people
using
the
contaminated
waters
for
recreation
or
drinking.
This
scenario
potentially
applies
not
only
to
animal
feeding
operations
but
also
to
herds
of
wildlife
(
e.
g.,
deer).
However,
the
threat
from
livestock
herds
is
likely
to
be
greater
given
the
larger
typical
herd
size
and
the
resultant
greater
quantity
of
fecal
wastes.
Wild
herds
are
typically
more
dispersed
and
smaller
and
therefore
likely
represent
a
smaller
risk
to
watersheds.
In
addition,
wildlife
are
not
typically
in
routine
daily
contact
with
humans,
as
may
be
the
case
for
livestock
and
other
domestic
animals.
Therefore,
EPA
is
considering
a
third
approach
for
addressing
non­
human
sources
of
fecal
contamination
in
establishing
water
quality
standards
that
apply
only
to
bacteria
from
human
and
non­
wildlife
animal
sources.

In
summary,
the
preceding
paragraphs
describe
three
possible
approaches
in
reviewing
exemptions
for
non­
human
sources
of
fecal
contamination:

1)
Require
sanitary
and
epidemiological
studies
before
excluding
non­
human
sources;

2)
Require
only
sanitary
surveys
before
excluding
non­
human
sources;
or
3)
Exclude
only
wildlife
sources.

EPA
is
soliciting
comment
on
all
of
the
above
approaches.
Should
EPA
revise
its
approach
in
the
final
rule
addressing
non­
human
sources
of
E.
coli
and
enterococci,
States
and
Territories
that
exempt
non­
human
sources
and
are
included
in
today's
proposal
may
not
be
included
in
the
final
rule.

5.
Has
EPA
Approved
the
Standards?
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Under
section
303(
i)(
2)(
A)
of
the
CWA,
EPA
must
determine
whether
a
State
or
Territory
has
failed
to
adopt
water
quality
standards
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.
Moreover,
under
40
CFR
131.21,
EPA
must
approve
State
or
Territorial
water
quality
standards
that
are
adopted
after
May
30,
2000,
in
order
for
those
standards
to
be
in
effect
for
CWA
purposes.
Therefore,
EPA
must
have
approved
State
and
Territorial
standards
for
enterococci
or
E.
coli
that
are
consistent
with
CWA
section
303(
i)
for
the
State
or
Territory
to
be
excluded
from
the
proposed
rule
if
the
standards
were
adopted
after
May
30,
2000.
State
and
Territorial
standards
adopted
prior
to
May
30,
2000
that
are
consistent
with
CWA
section
303(
i)

are
in
effect
for
CWA
purposes
even
without
explicit
EPA
approval.

B.
Which
States
and
Territories
are
Included
in
Today's
Proposed
Rule?

EPA
researched
the
status
of
water
quality
standards
for
bacteria
for
each
State
and
Territory
with
coastal
recreation
waters.
On
April
20,
2004,
EPA
sent
letters
to
the
Commissioners
of
every
coastal
and
Great
Lakes
State
and
Territory
to
inform
them
of
this
impending
proposed
rule
and
of
EPA's
understanding
at
that
time
of
their
water
quality
standards.

These
letters
stated
that
EPA
would
propose
to
include
in
this
rule
all
States
and
Territories
with
coastal
recreation
waters
(
i.
e.
those
coastal
and
Great
Lakes
waters
designated
for
swimming,

bathing,
surfing
and
similar
water
contact
activities)
that
do
not
have
CWA­
effective
water
quality
standards
for
pathogen
indicators
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.

In
preparing
these
letters,
EPA
conducted
a
preliminary
review
of
the
water
quality
standards
of
the
thirty­
five
States
and
Territories
with
coastal
recreation
waters.
EPA's
current
understanding
of
each
State's
and
Territory's
water
quality
standards
is
reflected
in
the
discussion
in
this
section.

EPA
solicits
comment
to
confirm
whether
EPA
has
accurately
characterized
the
current
status
of
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water
quality
standards
for
coastal
recreation
waters,
and
seeks
information
on
the
progress
of
States'
and
Territories'
adoption
of
the
E.
coli
and
enterococci
criteria.

Alabama
On
April
20,
2004,
Alabama
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
June
25,
2004.
The
criteria
are
for
enterococci
and
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
104
for
coastal
waters
designated
by
Alabama
as
"
Outstanding
Alabama
Waters",
"
Swimming",
and
"
Shellfish
Harvesting".
Waters
designated
by
Alabama
as
"
Public
Water
Supply"
and
"
Fish
and
Wildlife"

include
water
contact
sports
as
a
use
only
from
June
through
September.
The
enterococci
criteria
for
those
months
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
158/
100
ml.
From
October
through
May,
Public
Water
Supply
and
Fish
and
Wildlife
waters
are
not
designated
for
recreation.

EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria
and
Alabama
is
therefore
not
included
in
this
proposal.

Alaska
Alaska
has
not
adopted
criteria
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.
Therefore,
EPA
is
including
Alaska
in
today's
proposal.
Alaska
has
notified
EPA
of
the
State's
intention
to
initiate
rulemaking
to
adopt
criteria
consistent
with
EPA's
1986
bacteria
criteria
by
taking
public
comment
in
Summer
2004.
The
State
anticipates
adoption
of
the
criteria
into
State
water
quality
standards
by
December,
2004.

American
Samoa
On
November
16,
1999,
American
Samoa
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
May
2,
2001.
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The
criteria
are
for
enterococci
with
a
geometric
mean
of
35/
100
ml
and
an
SSM
value
of
104/
100
ml
for
Pago
Pago
Harbor,
Fagatele
Bay,
and
Pala
Lagoon;
the
criteria
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
value
of
124/
100
ml
for
open
coastal
waters;
and
the
criteria
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
value
of
276/
100
ml
for
those
ocean
waters
beyond
the
600­
foot
depth
contour
seaward.
EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
and
American
Samoa
is
therefore
not
included
in
this
proposal.

California
California
has
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria
for
some
but
not
all
its
coastal
recreation
waters.
The
Los
Angeles
Regional
Board
(
RB4)
adopted
criteria
on
July
18,
2002,
and
EPA
approved
them
on
September
25,
2002.
The
RB4
criteria
are
for
enterococci
and
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
104/
100
ml.
The
other
Regional
Boards
with
coastal
recreation
waters
have
not
yet
adopted
bacteria
criteria
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.
The
California
Ocean
Plan,
which
was
adopted
on
March
22,
1990,
applies
enterococcus
monitoring
requirements
to
nearshore
ocean
waters;
however,
it
does
not
establish
State
water
quality
criteria.
State
Health
Regulations
adopted
by
the
State
pursuant
to
Assembly
Bill
411
apply
enterococcus
requirements
to
all
coastal
waters;
however,
these
regulations
are
separate
from
State
water
quality
standards.

Therefore,
EPA
is
including
California
in
today's
proposal,
except
for
waters
covered
by
RB4.

Commonwealth
of
Northern
Mariana
Islands
The
Commonwealth
adopted
a
geometric
mean
criterion
for
enterococci
on
January
20,

1997,
and
EPA
approved
it
on
February
3,
1997.
However,
the
Commonwealth
has
not
adopted
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SSM
values.
Therefore,
EPA
is
including
the
Commonwealth
in
today's
proposal
but
only
with
respect
to
the
SSM
portion
of
the
rule.
EPA
could
remove
the
Commonwealth
from
the
final
rule
depending
on
which
SSM
option
EPA
chooses
in
the
final
rule.
The
Commonwealth
has
initiated
the
rule­
making
process
to
adopt
SSM
values.
The
Commonwealth
published
the
amendment
to
the
standards
in
the
Commonwealth
Register
on
April
23,
2004,
and
the
amendment
is
scheduled
to
be
adopted
before
September,
2004.

Connecticut
On
November
7,
2001,
Connecticut
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
December
17,
2002.

Connecticut's
enterococci
criteria
include
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
104/
100
ml
for
"
Designated
Swimming"
waters,
which
include
areas
designated
by
state
or
local
authorities
as
bathing
areas,
and
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
500/
100
ml
for
"
All
Other
Recreational
Uses",
which
are
applied
to
other
coastal
waters.
The
Connecticut
water
quality
standards
include
General
Standards
8
and
25.
There
is
some
ambiguity
regarding
the
application
of
these
General
Standards.
In
practice,
however,
Connecticut
uses
the
numeric
criteria
established
for
enterococci
in
Appendix
B
of
the
Connecticut
WQS
regardless
of
source
in
coastal
recreation
waters
for
CWA
purposes.
For
example,
Connecticut's
2002
CWA
section
303(
d)
list
includes
waters
that
are
impaired
due
to
bacteria
from
nonpoint
sources
and
waterfowl.

Therefore,
EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
and
Connecticut
is
therefore
not
included
in
this
proposal.

Delaware
Delaware
adopted
enterococci
criteria
on
July
15,
1999,
and
EPA
approved
these
on
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December
2,
1999.
Delaware's
CWA­
effective
standards
include
criteria
for
enterococci
with
a
geometric
mean
of
10/
100
ml
but
no
corresponding
SSM.
In
addition,
the
Delaware
standards
apply
only
to
human
sources
of
fecal
contamination.
Therefore,
EPA
is
including
Delaware
in
today's
proposal.
EPA
could
remove
Delaware
from
the
final
rule
depending
on
which
SSM
option
and
which
nonhuman
source
option
EPA
chooses
in
the
final
rule.
Delaware
is
in
the
process
of
adopting
and
submitting
to
EPA
revised
standards
for
bacteria.

Florida
Florida
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Florida
in
today's
proposal.
Florida
has
initiated
internal
discussions
and
the
State
plans
to
initiate
adoption
of
criteria
consistent
with
EPA's
1986
bacteria
criteria
this
year.

Georgia
Georgia
has
not
yet
adopted
criteria
consistent
with
EPA's
criteria,
nor
has
it
initiated
any
regulatory
process
to
adopt
water
quality
standards
consistent
with
EPA's
bacteria
criteria.

Therefore,
EPA
is
including
Georgia
in
today's
proposal.

Guam
On
June
18,
2002,
Guam
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
July
24,
2002.
The
criteria
are
for
enterococci
and
have
a
geometric
mean
of
35/
100
ml
for
all
marine
waters.
The
SSM
is
104/
100
ml
for
whole
body
contact
recreation
waters
and
is
276/
100
ml
for
limited
body
contact
recreation.
EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria
and
Guam
is
therefore
not
included
in
this
proposal.
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Hawaii
Hawaii
has
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria
for
some
but
not
all
its
coastal
recreation
waters.
Hawaii
has
adopted,
and
EPA
has
approved,
a
geometric
mean
criterion
of
7
for
enterococci
in
non­
estuarine
marine
recreational
waters
within
300
meters
(
1,000
feet)
of
the
shoreline.
Hawaii
is
in
the
process
of
adopting
an
SSM
criterion
for
nonestuarine
marine
waters
within
300
meters
of
shore
and
both
components
of
the
enterococci
criteria
for
coastal
estuaries
consistent
with
EPA's
1986
bacteria
criteria.
Hawaii
has
no
numeric
criteria
protecting
State
waters
beyond
300
meters
from
shore,
although
these
waters
are
designated
for
recreation
in
the
State's
water
quality
standards.
Therefore,
EPA
is
including
Hawaii
in
this
proposal,
except
for
non­
estuarine
coastal
recreation
waters
within
300
meters
of
the
shoreline.

Illinois
Illinois
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Illinois
in
today's
proposal.
Illinois
has
informed
EPA
that
it
will
initiate
the
rulemaking
process
to
adopt
revised
standards
for
bacteria
by
September
30,
2004.

Indiana
On
December
13,
1989,
Indiana
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
May
7,
1990.
The
criteria
are
for
E.
coli
and
include
a
geometric
mean
of
125/
100
ml
and
an
SSM
of
235/
100
ml.

EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,

and
therefore
Indiana
is
not
included
in
this
proposal.

Louisiana
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product:
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quote
July
8,
2004
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47
Louisiana
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria,
nor
has
the
State
initiated
any
regulatory
process
to
meet
BEACH
Act
requirements.
Therefore,
EPA
is
including
Louisiana
in
today's
proposal.

Maine
Maine
made
effective
enterococci
criteria
for
its
coastal
recreation
waters
classified
as
"
SB"
and
"
SC",
and
EPA
approved
these
criteria
on
July
16,
1986.
The
enterococci
criteria
include
a
geometric
mean
of
8/
100
ml
and
a
single
sample
maximum
of
54/
100
ml
in
the
State's
waters
classified
as
"
SB."
Class
"
SB"
waters
are
those
that
are
"
suitable
for
the
designated
uses
of
recreation
in
and
on
the
water"
as
well
as
other
uses.
(
ME.
REV.
STAT.
ANN.
tit.
38
§
465­
B
(
2003)).
Additionally,
the
enterococci
criteria
include
a
geometric
mean
of
14/
100
ml
and
an
SSM
of
94/
100
ml
for
the
State's
waters
classified
as
"
SC."
Class
"
SC"
waters
are
also
those
that
are
"
of
such
quality
that
they
are
suitable
for
recreation
in
and
on
the
water"
as
well
as
other
uses.
(
ME.
REV.
STAT.
ANN.
tit.
38
§
465­
B
(
2003)).
Although
Maine's
criteria
numbers
are
lower
than
EPA's,
Maine's
criteria
pertain
only
to
enterococci
of
human
origin.
Based
on
the
non­
human
source
discussion
in
Section
IV.
A.
4.
of
this
preamble,
EPA
does
not
believe
that
Maine's
criteria
would
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria
in
cases
where
the
enterococci
are
of
non­
human
origin.
The
1986
bacteria
criteria
document
recommends
that
States
and
Territories
apply
the
E.
coli
and
enterococci
criteria
to
all
full
body
contact
recreation
waters
unless
both
(
1)
sanitary
and
epidemiological
studies
show
the
sources
of
the
indicator
bacteria
to
be
non­
human,
and
(
2)
the
indicator
densities
are
not
indicative
of
a
health
risk
to
those
swimming
in
such
waters.
EPA
recognizes
that
Maine's
approach
for
addressing
non­
human
pathogen
sources
is
consistent
with
an
option
for
addressing
recreational
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48
uses
that
is
included
in
EPA's
1994
Water
Quality
Standards
Handbook,
and
Maine's
approach
is
cited
in
this
document
as
an
example
of
a
State
that
has
successfully
implemented
such
an
approach.
When
EPA
approved
the
Maine
pathogen
standards
in
1986,
it
did
so
using
the
requirements
of
40
CFR
131.5
and
131.6,
which
requires
water
quality
criteria
be
sufficient
to
protect
the
designated
uses.
However,
the
BEACH
Act
in
2000
added
CWA
section
303(
i)

which
requires
that
the
pathogen
criteria
be
"
as
protective
of
human
health
as"
EPA's
1986
bacteria
criteria
document.
This
is
a
different
standard
of
review
than
in
40
CFR
131.5
and
131.6.

Based
on
the
comparison
of
Maine's
approach
for
nonhuman
sources
to
that
in
EPA's
1986
bacteria
criteria
document,
EPA
does
not
believe
that
Maine's
approach
is
"
as
protective
of
human
health
as"
EPA's
bacteria
criteria
document.
Therefore,
EPA
is
proposing
to
include
Maine
in
today's
rule
for
limited
purposes.
EPA
could
remove
Maine's
SB
and
SC
waters
from
the
final
rule
depending
on
which
nonhuman
source
option
EPA
chooses
in
the
final
rule.
EPA
is
aware
that
independent
of
this
proposed
rule,
it
is
Maine's
intent
to
revise
the
applicability
of
its
bacteria
criteria
to
include
enteroccoci
from
domestic
animals
as
well
as
enterococci
of
human
origin.
This
revision
is
expected
during
Maine's
next
legislative
session
in
January
2005.

EPA's
proposed
criteria
would
not
apply
to
Maine's
SB
and
SC
waters
if
the
enterococci
bacteria
are
of
human
origin.
In
these
cases,
Maine's
criteria
would
apply.
Should
EPA
receive
information
during
the
public
comment
period
showing
that
there
are
only
human
sources
of
fecal
contamination
in
Maine
Class
SB
and
SC
coastal
recreation
waters,
EPA
would
remove
Maine
from
the
promulgation
of
the
final
rule
for
Class
SB
and
SC
waters
because
Maine's
criteria
would
apply
to
all
sources
of
enterococci
to
coastal
recreation
waters.

Maine
also
has
as
its
most
protective
class,
"
SA"
waters.
Class
SA
"
shall
be
the
highest
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49
classification
and
shall
be
applied
to
waters
which
are
outstanding
natural
resources"
and
"
shall
be
of
such
quality
that
they
are
suitable
for
designated
uses
of
recreation
in
and
on
the
waters"
as
well
as
other
uses.
(
ME.
REV.
STAT.
ANN.
tit.
38
§
465­
B
(
2003).
The
bacteria
content
of
Class
SA
waters
"
shall
be
as
naturally
occurs."
EPA
believes
that
"
as
naturally
occurs"
for
bacteria
in
Maine's
water
quality
standards
is
consistent
with
the
objective
of
the
CWA
at
Section
101(
a)
to
"
restore
and
maintain
the
chemical,
physical,
and
biological
integrity
of
the
Nation's
waters."
Naturally
occurring
bacteria
levels
should
not
present
more
risk
than
the19
illnesses
per
1000
swimmers
accepted
in
the
1986
bacteria
criteria
document.
Although
storm
water
discharges
to
Class
SA
waters
are
allowed,
EPA
understands
Maine's
standards
to
not
authorize
storm
water
discharges
that
exceed
bacteria
levels
that
would
otherwise
occur
naturally
in
the
receiving
water
absent
the
storm
water
discharges.
For
these
reasons,
EPA
is
not
including
Maine's
Class
SA
waters
in
today's
proposal.

Maryland
Maryland
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Maryland
in
today's
proposal.
Maryland
is
completing
its
rulemaking
process
and
expects
to
submit
newly
adopted
criteria
to
EPA
in
the
near
future.
Maryland
has
been
working
with
EPA
to
assure
the
development
of
state
water
quality
standards
that
are
consistent
with
EPA's
1986
bacteria
criteria.

Massachusetts
Massachusetts
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Massachusetts
in
today's
proposal.
Massachusetts
has
initiated
the
rulemaking
process
and
expects
to
adopt
criteria
consistent
with
EPA's
1986
bacteria
criteria
by
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
50
December
31,
2004.

Michigan
On
May
20,
1994,
Michigan
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
August
11,
1994.
The
State
standards
include
E.
coli
with
a
geometric
mean
of
130/
100
ml
and
an
SSM
value
of
300/
100
ml
for
total
body
contact
recreation
and
an
SSM
of
1000/
100
ml
for
partial
body
contact
recreation.

Michigan's
criteria
are
considered
to
be
within
the
acceptable
risk
level
range
of
0.8%
to
1.0%.

(
This
range
was
described
in
Section
IV.
A.
2.).
Therefore,
EPA
interpreted
Michigan's
E.
coli
geometric
mean
of
130/
100
ml
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
which
recommended
a
geometric
mean
of
126/
100
ml.
EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
and
Michigan
is
therefore
not
included
in
this
proposal.

Minnesota
Minnesota
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Minnesota
in
today's
proposal.
Minnesota
has
initiated
the
rulemaking
process
and
expects
to
adopt
criteria
consistent
with
EPA's
1986
bacteria
criteria
by
July
2005.

Mississippi
Mississippi
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Mississippi
in
today's
proposal.
Mississippi
has
initiated
internal
discussions
and
expects
to
adopt
a
geometric
mean
criterion
by
August
2004.
The
State
will
be
conducting
beach
user
studies
in
the
summer
of
2004
to
determine
the
appropriate
SSM
based
on
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product:
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or
quote
July
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2004
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51
usage
of
certain
areas
and
expects
to
adopt
SSM
criteria
by
August
2005.

New
Hampshire
On
July
2,
1991,
New
Hampshire
adopted
EPA's
1986
bacteria
criteria
for
all
its
coastal
recreation
waters
and
the
criteria
became
effective
for
CWA
purposes
on
August
31,
1991.
The
standards
include
enterococci
and
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
104/
100
ml
for
all
coastal
recreation
waters.
EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
and
New
Hampshire
is
therefore
not
included
in
this
proposal.

New
Jersey
On
July
14,
1989,
New
Jersey
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
April
23,
1991.
New
Jersey's
bacteria
criteria
include
enterococci
and
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
104/
100
ml
for
all
coastal
recreation
waters.
For
the
Delaware
Bay,
New
Jersey
incorporates
by
reference
the
water
quality
standards
adopted
by
the
Delaware
River
Basin
Commission
(
DRBC)
(
N.
J.
A.
C.
7:
9B­
1.13).
The
DRBC
adopted
enterococci
criteria
with
a
geometric
mean
of
35/
100
ml,
but
no
SSM,
for
the
Delaware
Bay.
However,
New
Jersey's
standards
include
a
provision
that
applies
New
Jersey
water
quality
criteria
to
the
Delaware
Bay
if
the
DRBC
has
not
established
criteria
(
N.
J.
A.
C.
7:
9B­
1.14(
d)).
Therefore,
New
Jersey's
water
quality
standards
include
an
SSM
that
applies
to
the
Delaware
Bay
in
the
absence
of
an
SSM
in
the
DRBC's
standards,
as
explained
in
a
May
19,
2004,
letter
from
Brad
Campbell,
Commissioner
of
the
New
Jersey
Department
of
Environmental
Protection
to
Ben
Grumbles,
Acting
Assistant
Administrator
for
Water,
U.
S.
EPA.
EPA
considers
New
Jersey's
criteria
to
be
as
protective
of
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July
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human
health
as
EPA's
1986
bacteria
criteria,
and
New
Jersey
is
therefore
not
included
in
this
proposal.

New
York
New
York
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
New
York
in
today's
proposal.
New
York
has
informed
EPA
that
it
will
initiate
its
rulemaking
process
to
adopt
revised
standards
for
bacteria
shortly.
The
State
anticipates
final
adoption
of
revised
bacteria
criteria
in
2005.

North
Carolina
North
Carolina
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
North
Carolina
in
today's
proposal.
The
State
has
started
internal
discussions
and
has
exchanged
draft
language
with
EPA.

Ohio
Ohio
has
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria
for
all
waters
in
Lake
Erie
in
addition
to
fecal
coliform
standards.
The
standards
for
E.
coli
include
a
geometric
mean
of
126/
100
ml
for
designated
bathing
waters
and
for
designated
primary
contact
waters.

However,
the
Ohio
water
quality
standards
allow
the
use
of
either
E.
coli
or
fecal
coliform
and
specify
that
compliance
with
the
criteria
can
be
demonstrated
by
attainment
of
either
criterion.

Because
Ohio's
standards
allow
the
use
of
either
indicator,
and
fecal
coliform
is
not
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
EPA
is
including
Ohio
in
today's
proposal.
In
addition,
EPA
is
including
Ohio
in
today's
proposal
because
the
State
does
not
have
an
SSM,
as
EPA
interprets
the
term
(
see
Section
III.
B.
1).
Instead,
Ohio's
standards
include
E.
coli
values
not
to
be
exceeded
in
more
than
ten
percent
of
the
samples
taken
during
any
thirty­
day
period:
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product:
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July
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235/
100
ml
for
designated
bathing
waters
and
298/
100
ml
for
designated
primary
contact
waters.

These
values
are
identical
to
EPA's
SSM
values
for
the
75
and
82
percent
confidence
levels
respectively,
but
they
are
not
expressed
as
SSMs
because
they
allow
10
percent
of
the
samples
to
exceed
the
SSM.

Should
EPA
receive
information
during
the
public
comment
period
showing
that
Ohio
applies
its
E.
coli
criterion
for
all
Clean
Water
Act
implementation
purposes
in
Lake
Erie,
and
applies
its
upper
bound
values
in
a
manner
as
stringent
as
the
approach
EPA
takes
for
the
SSM
in
the
final
rule,
EPA
would
remove
Ohio
from
the
final
rule.

Oregon
Oregon
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria,
nor
has
the
State
initiated
any
regulatory
process
to
meet
the
BEACH
Act
requirements.
Therefore,
EPA
is
including
Oregon
in
today's
proposal.

Pennsylvania
Pennsylvania
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Pennsylvania
has
initiated
a
modification
to
its
Department
of
Health
regulations
relating
to
the
bacteriological
standards
and
monitoring
of
its
Great
Lake
public
bathing
beaches
but
has
not
yet
submitted
any
revision
of
its
water
quality
standards
to
EPA.
Therefore,
EPA
is
including
Pennsylvania
in
today's
proposal.

Puerto
Rico
The
Commonwealth
of
Puerto
Rico's
water
quality
criteria
for
recreational
waters
applies
to
those
Class
SB
(
coastal)
waters
which
are
intensely
used
for
primary
contact
recreation,
like
special
bathing
zones
(
beaches),
and
the
Class
SC
waters
for
which
EPA
recently
completed
Deliberative
product:
Do
not
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or
quote
July
8,
2004
(
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54
rulemaking
(
to
establish
a
designated
use
and
applicable
water
quality
criteria
(
including
the
1986
bacteria
criteria
for
enterococci)
to
protect
primary
contact
recreation.
The
remaining
Class
SB
waters,
which
are
not
designated
bathing
beaches
but
are
coastal
recreation
waters,
do
not
have
bacteria
criteria
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria.
Therefore,
EPA
is
including
Puerto
Rico,
except
for
coastal
recreation
waters
intensely
used
for
primary
contact
recreation,
in
today's
proposal.
Puerto
Rico
has
informed
EPA
of
its
intent
to
adopt
criteria
consistent
with
EPA's
1986
bacteria
criteria
for
the
remaining
Class
SB
waters.

Rhode
Island
Rhode
Island
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Rhode
Island
in
today's
proposal.
Rhode
Island
has
informed
EPA
of
its
intent
to
adopt
criteria
consistent
with
EPA's
1986
bacteria
criteria
and
has
initiated
the
rulemaking
process.
Rhode
Island
plans
to
adopt
EPA's
criteria
by
the
end
of
2004.

South
Carolina
South
Carolina
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
South
Carolina
in
today's
proposal.
South
Carolina
has
initiated
the
rulemaking
process
and
expects
to
adopt
EPA's
criteria
by
June
2004.

Texas
On
July
26,
2000,
Texas
adopted
criteria
for
all
its
coastal
recreation
waters
consistent
with
EPA's
1986
bacteria
criteria,
and
EPA
approved
these
on
June
30,
2004.
Texas'
bacteria
criteria
include
enterococci
and
have
a
geometric
mean
of
35/
100
ml
and
an
SSM
of
89/
100
ml
for
all
coastal
recreation
waters.
The
water
quality
standards
also
include
criteria
for
fecal
coliform.
Kathleen
Hartnett
White,
Chair
of
the
Texas
Commission
on
Environmental
Quality,
Deliberative
product:
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8,
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sent
two
letters
dated
June
16
and
June
29,
2004,
explaining
Texas'
interpretation
of
the
State's
standards.
Ms.
White
acknowledged
that,
under
these
revised
standards,
Texas
has
discretion
to
use
fecal
coliform
as
an
alternative
recreational
indicator.
At
the
time
Texas
adopted
these
standards,
in
2000,
it
included
this
discretion
for
three
reasons:
(
1)
Texas
wanted
time
to
transition
from
monitoring
for
fecal
coliform
to
enterococci
for
waters
designated
for
contact
recreation;
(
2)
Texas
was
concerned
about
monitoring
resources
and
laboratory
equipment
needed
to
sustain
monitoring
for
both
enterococci
and
fecal
coliform
in
Oyster
Waters,
and
(
3)

Texas
wanted
to
allow
for
the
possibility
that
additional
data
and
evaluation
of
the
two
indicators
would
show
that
the
Oyster
Water
criterion
for
fecal
coliform
would
be
a
protective
surrogate
for
enterococci.
Ms.
White
also
explained
in
her
June
2004
letters
that
currently
the
State
is
monitoring
for
enterococci
in
all
of
its
coastal
recreation
waters,
including
Oyster
Waters.
In
addition,
she
expressly
recognized
that,
at
this
time,
the
relationship
between
fecal
coliform
and
enterococci
has
not
been
demonstrated
for
Texas
coastal
waters.
Finally,
in
the
June
29,
2004,

letter,
Texas
explicitly
states
that
the
enterococci
criteria
are
in
effect
for
all
CWA
purposes
for
all
coastal
recreation
waters,
including
those
designated
as
Oyster
Waters.
With
this
additional
information,
EPA
considers
enterococci
to
be
the
applicable
criteria
in
all
coastal
recreation
waters
for
all
CWA
purposes.
EPA
considers
these
criteria
to
be
as
protective
of
human
health
as
EPA's
bacteria
criteria,
and
Texas
is
therefore
not
included
in
this
proposal.

United
States
Virgin
Islands
The
Virgin
Islands
have
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.
Therefore,
EPA
is
including
the
Virgin
Islands
in
today's
proposal.
The
Virgin
Islands
have
initiated
the
rulemaking
process
and
expect
to
adopt
EPA's
criteria
by
September
30,
2004.
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Virginia
On
February
12,
2002,
Virginia
adopted
EPA's
1986
bacteria
criteria
for
all
its
coastal
recreation
waters,
and
EPA
approved
these
on
November
8,
2002.
The
standards
include
enterococci
and
have
a
geometric
mean
of
35/
100
ml
for
all
coastal
waters
and
an
SSM
value
of
104/
100
ml.
The
standards
also
have
fecal
coliform
for
shellfish
waters
in
addition
to
enterococci.

EPA
considers
the
enterococci
criteria
to
be
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
and
Virginia
is
therefore
not
included
in
this
proposal.

Washington
Washington
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.
In
a
May
11,
2004,
letter,
Washington
explained
its
view
that
the
State's
data
show
that
where
the
geometric
mean
of
fecal
coliform
concentrations
are
at
or
below
14
counts/
100
ml,
the
corresponding
geometric
mean
of
enterococci
bacteria
are
at
or
below
EPA's
1986
marine
criterion
of
35
counts/
100
ml.
EPA
is
reviewing
this
information
and
requests
comment
on
it.

The
data
submitted
by
Washington
are
available
in
the
official
public
docket
for
this
rulemaking.

Because
EPA
has
not
yet
determined
that
the
data
demonstrate
that
Washington's
standards
satisfy
the
requirements
of
section
303(
i),
EPA
is
including
Washington
in
today's
proposal.

Wisconsin
Wisconsin
has
not
yet
adopted
criteria
consistent
with
EPA's
1986
bacteria
criteria.

Therefore,
EPA
is
including
Wisconsin
in
today's
proposal.
Wisconsin
has
initiated
the
rulemaking
process
and
intends
to
adopt
criteria
consistent
with
EPA's
bacteria
criteria
by
winter
2005­
2006.

Tribes
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No
Tribes
are
included
in
this
proposal.
EPA
has
determined
there
are
about
40
Federally­
recognized
Tribes
located
next
to
either
coastal
or
Great
Lakes
waters.
As
of
the
date
of
this
proposal,
none
of
these
Tribes
have
coastal
recreation
waters
(
i.
e.,
coastal
or
Great
Lakes
waters
designated
for
swimming,
bathing,
surfing
or
similar
water
contact
activities).
EPA
is
not
including
these
Tribes
in
today's
proposal
because
the
requirements
of
CWA
section
303(
i)
only
apply
to
coastal
recreation
waters.
EPA
recognizes
that
the
criteria
in
today's
proposal
will
help
inform
Agency
decisions
related
to
its
review
of
current
and
future
Tribal
water
quality
standards
submissions
to
EPA.
EPA
has
contacted
those
Tribes
identified
as
having
coastal
or
Great
Lakes
waters
to
inform
them
of
the
potential
future
impact
this
proposal
could
have
on
Tribal
waters.

EPA
solicits
comment
on
its
interpretation
of
CWA
section
303(
i)
as
it
applies
to
coastal
Tribal
waters
that
have
not
been
designated
for
swimming,
bathing,
surfing,
or
similar
water
contact
activities.

C.
Under
What
Conditions
Will
States
and
Territories
be
Removed
from
a
Final
Rule?

As
discussed
in
Section
II
of
this
preamble,
the
water
quality
standards
program
has
been
established
with
an
emphasis
on
State
primacy.
Although
this
proposed
rule
has
been
developed
to
promulgate
Federal
bacteria
criteria
for
certain
States
and
Territories,
EPA
prefers
that
States
and
Territories
maintain
primacy
and
revise
their
own
standards
to
meet
CWA
sections
303(
c)

and
303(
i)
requirements.
EPA
is
hopeful
that
today's
proposed
rulemaking
will
provide
additional
impetus
for
States
and
Territories
to
adopt
the
criteria
for
bacteria
necessary
to
comply
with
CWA
section
303(
i).

For
States
and
Territories
that
adopt
criteria
that
EPA
approves
as
meeting
CWA
section
303(
i)
requirements
before
publication
of
the
final
rulemaking,
EPA
will
not
include
them
in
the
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final
rulemaking.
At
any
point
in
the
process
prior
to
final
promulgation,
a
State
or
Territory
can
ensure
that
it
will
not
be
affected
by
this
action
by
adopting
the
necessary
criteria
pursuant
to
State
or
Territorial
law
and
receiving
EPA
approval.
EPA
will
make
every
effort
to
issue
timely
approval
of
revised
criteria
submitted
before
promulgation
of
the
final
rule.

Following
a
final
promulgation
of
this
rule,
removal
of
Federal
standards
for
a
State
or
Territory
will
require
rulemaking
by
EPA
according
to
the
requirements
of
the
Administrative
Procedure
Act
(
5
U.
S.
C.
551
et
seq.).
When
a
State
or
Territory
adopts
standards
as
protective
of
human
health
as
EPA's
1986
bacteria
criteria,
EPA
will
undertake
such
a
rulemaking
to
withdraw
the
Federal
criteria.

V.
Alternative
Regulatory
Approaches
and
Implementation
Mechanisms
In
developing
a
final
rule,
EPA
will
consider
any
data
or
information
submitted
to
the
Agency
during
the
comment
period.
However,
it
is
possible
that
relevant
information
for
particular
coastal
recreation
waters
covered
by
this
proposed
rule
may
become
available
after
completion
of
this
rulemaking.
If
EPA
ultimately
promulgates
a
Federal
E.
coli
and
enterococci
criteria
for
coastal
recreation
waters
for
some
or
all
of
the
States
and
Territories
covered
by
this
proposal,
there
are
several
ways
to
ensure
that
the
primary
contact
recreation
use
and
its
implementing
mechanisms
appropriately
take
into
account
such
future
information.

A.
Designating
Uses
States
and
Territories
have
considerable
discretion
in
designating
uses.
A
State
or
Territory
may
find
that
changes
in
use
designations
are
warranted.
EPA
will
review
any
new
or
revised
use
designations
adopted
by
the
States
or
Territories
for
coastal
recreation
waters
covered
by
this
proposed
rule
to
determine
if
the
standards
meet
the
requirements
of
the
CWA
and
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implementing
regulations.
In
adopting
recreation
uses,
the
States
and
Territories
may
wish
to
consider
additional
categories
of
recreation
uses.

EPA
reminds
the
States
and
Territories
that
they
must
conduct
use
attainability
analyses
as
required
by
40
CFR
131.10(
g)
when
adopting
water
quality
standards
with
uses
not
specified
in
CWA
section
101(
a)(
2)
or
with
subcategories
of
designated
uses
specified
in
CWA
section
101(
a)(
2)
that
require
less
stringent
criteria
(
see
40
CFR
131.10(
j)).

B.
Compliance
Schedules
A
compliance
schedule
refers
to
an
enforceable
sequence
of
interim
requirements
in
a
permit
leading
to
ultimate
compliance
with
water
quality­
based
effluent
limitations
(
WQBELs)
in
accordance
with
the
CWA.
In
an
NPDES
permit,
WQBELs
are
the
value
determined
by
selecting
the
most
stringent
of
the
effluent
limits
calculated
using
all
applicable
water
quality
criteria
for
a
specific
point
source
to
a
specific
receiving
water
for
a
given
pollutant
(
See
NPDES
Permit
Writers
Manual,
EPA­
833­
B­
96­
003,
December,
1996).

Although
many
States
and
Territories
have
adopted
regulations
that
are
effective
for
CWA
purposes
authorizing
compliance
schedules
for
WQBELs,
some
have
not
done
so.
Therefore,

EPA
is
proposing
that
where
a
State
or
Territory
does
not
have
a
regulation
that
is
in
effect
for
CWA
purposes
authorizing
compliance
schedules
for
WQBELs,
this
proposed
rule
would
authorize,
but
would
not
require,
the
permit
issuing
authority
to
include
such
compliance
schedules
in
permits
under
appropriate
circumstances.
If
a
State
or
Territory
does
have
a
regulation
that
is
in
effect
for
CWA
purposes
authorizing
compliance
schedules,
that
compliance
schedule
regulation
would
continue
to
apply
and
would
not
be
affected
by
today's
proposed
rule.

It
may
be
that
a
State
or
Territory
that
does
not
have
a
regulation
authorizing
compliance
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schedules
has
chosen
that
it
does
not
want
such
a
regulation.
Thus,
if
a
State
or
Territory
notifies
EPA
in
writing
prior
to
promulgation
that
it
does
not
want
to
authorize
compliance
schedules
in
permits
implementing
the
bacteria
criteria,
then
EPA
would
exclude
that
State
or
Territory
from
the
compliance
schedule
provision
contained
in
the
final
rule.
Deferring
to
each
State's
or
Territory's
compliance
schedule
decisions
would
be
consistent
with
the
CWA's
approach
of
giving
the
States
and
Territories
the
primary
authority
over
water
pollution
control
(
CWA
section
101(
b)).

In
States
and
Territories
where
this
proposed
rule's
compliance
schedule
provision
would
apply,
the
permitting
authority
authorized
to
administer
the
National
Pollutant
Discharge
Elimination
System
(
NPDES)
program
would
exercise
its
discretion
when
deciding
if
a
compliance
schedule
is
justified
because
of
the
technical
or
financial
(
or
other)
infeasibility
of
immediate
compliance.
A
provision
authorizing
compliance
schedules
is
included
in
today's
proposed
rule
because
of
the
potential
for
existing
dischargers
to
have
new
or
more
stringent
effluent
limitations
for
which
immediate
compliance
would
not
be
possible
or
practicable.

EPA
supports
the
States
and
Territories
in
adopting
a
statewide
provision
independent
of
or
as
part
of
the
effort
to
readopt
statewide
water
quality
control
plans,
or
in
adopting
individual
basin­
wide
compliance
schedule
provisions.
The
States
and
Territories
have
broad
discretion
to
adopt
a
provision,
including
discretion
on
reasonable
lengths
of
time
for
final
compliance
with
WQBELs.
EPA
recognizes
that
practical
time
frames
within
which
to
set
interim
goals
may
be
necessary
to
achieve
meaningful,
long­
term
improvements
in
water
quality.

New
and
Existing
Pathogen
Dischargers:
The
provision
would
allow
compliance
schedules
only
for
an
"
existing
pathogen
discharger"
which
would
be
defined
as
any
discharger
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which
is
not
a
"
new
pathogen
discharger."
EPA
is
proposing
to
define
a
"
new
pathogen
discharger"
as
any
building,
structure,
facility,
or
installation
from
which
there
is
or
may
be
a
discharge
of
pathogens,
the
construction
of
which
commenced
after
the
effective
date
of
the
final
rule.
This
definition
is
modeled
after
the
definition
of
a
new
Great
Lakes
discharger
at
40
CFR
132.2
which
EPA
created
to
implement
the
compliance
schedule
provision
of
40
CFR
Part
132
Appendix
F,
Procedure
9.
The
definition
of
"
new
pathogen
discharger"
only
includes
new
sources
if
the
new
source
commences
construction
after
the
effective
date
of
the
final
rule.
Other
new
sources
that
commence
construction
before
the
effective
date
of
the
final
rule
would
be
treated
as
"
existing
pathogen
dischargers."
EPA
solicits
comment
on
the
utility
of
these
definitions
for
implementing
a
compliance
schedule
for
the
proposed
enterococci
and
E.
coli
criteria
in
40
CFR
131.41.

For
"
existing
pathogen
dischargers"
whose
permits
are
reissued
or
modified
to
contain
new
or
more
stringent
limitations
based
upon
certain
water
quality
requirements,
the
permit
could
allow
up
to
five
years
to
comply
with
such
limitations.
The
provision
would
apply
to
new
or
more
stringent
effluent
limitations
based
on
the
criteria
in
this
proposed
rule.
EPA
has
included
"
increasing
dischargers"
within
the
category
of
"
existing
pathogen
dischargers'"
for
purposes
of
this
rule
since
"
increasing
dischargers"
are
existing
facilities
with
a
change
 
an
increase
 
in
their
discharge.
Such
facilities
may
include
those
with
seasonal
variations.
"
Increasing
dischargers"

will
already
have
treatment
systems
in
place
for
their
current
discharge,
thus,
they
are
constrained
in
the
types
of
efficiencies
they
can
gain
from
their
existing
treatment
system
processes.
In
contrast,
a
new
discharger
can
design
and
build
a
new
treatment
system
which
most
efficiently
will
meet
the
new
water
quality­
based
requirements.
Allowing
existing
facilities
with
an
increasing
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discharge
a
compliance
schedule
in
appropriate
circumstances
would
avoid
placing
the
discharger
at
a
competitive
disadvantage
vis­
a­
vis
other
existing
dischargers
who
are
eligible
for
compliance
schedules.

Today's
proposed
rule
would
not
prohibit
the
use
of
a
short­
term
"
shake
down
period"
for
new
pathogen
dischargers
as
is
provided
for
new
sources
or
new
dischargers
in
40
CFR
122.29(
d)(
4).
These
regulations
would
require
that
the
owner
or
operator
of
(
1)
a
new
source;
(
2)

a
new
discharger
(
as
defined
in
40
CFR
122.2)
which
commenced
discharge
after
August
13,

1979;
or
(
3)
a
recommencing
discharger
shall
install
and
implement
all
pollution
control
equipment
to
meet
the
conditions
of
the
permit
before
discharging.
The
facility
would
also
be
required
to
meet
all
permit
conditions
in
the
shortest
feasible
time
(
not
to
exceed
90
days).
This
shake­
down
period
is
not
a
compliance
schedule.
This
approach
would
be
used
to
address
violations
which
may
occur
during
a
new
facility's
start­
up,
especially
where
permit
limits
are
water
quality­
based
and
biological
treatment
is
involved.

The
burden
of
proof
to
show
the
necessity
of
a
compliance
schedule
would
be
on
the
discharger,
and
the
discharger
would
be
required
to
request
approval
from
the
permit
issuing
authority
for
a
schedule
of
compliance.
The
discharger
should
submit
a
description
of
the
minimum
required
actions
or
evaluations
that
must
be
undertaken
in
order
to
comply
with
the
new
or
more
restrictive
discharge
limits.
Dates
of
completion
for
the
required
actions
or
evaluations
should
be
included,
and
the
proposed
schedule
should
reflect
the
shortest
practicable
time
to
complete
all
minimum
required
actions.

Duration
of
Compliance
Schedules:
Today's
proposed
rule
would
provide
that
compliance
schedules
may
provide
for
up
to
five
years
from
date
of
permit
issuance,
reissuance,
or
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modification
to
meet
new
or
more
stringent
effluent
limitations
in
those
circumstances
where
the
permittee
can
demonstrate
to
the
permit
authority
that
an
extended
schedule
is
warranted.
EPA's
regulations
at
40
CFR
122.47
require
compliance
with
standards
as
soon
as
possible.
This
means
that
permit
authorities
should
not
allow
compliance
schedules
where
the
permittee
fails
to
demonstrate
their
necessity.
This
provision
should
not
be
considered
a
default
compliance
schedule
duration
for
all
existing
facilities.
In
instances
where
dischargers
find
that
their
current
level
of
disinfection
or
other
treatment
is
not
sufficient
to
achieve
the
E.
coli
or
enterococci
criterion,
dischargers
will
need
to
increase
their
current
level
of
disinfection
or
evaluate
and
install
new
treatment
technology.
EPA
believes
that
five
years
is
sufficient
time
within
which
to
complete
this
process.

Under
this
proposed
rule,
where
a
schedule
of
compliance
exceeds
one
year,
interim
requirements
are
to
be
specified
and
interim
progress
reports
would
be
required
to
be
submitted
at
least
annually
to
the
permit
issuing
authority.

The
proposed
rule
would
allow
all
compliance
schedules
to
extend
up
to
a
maximum
duration
of
five
years.
Under
the
proposal,
an
existing
pathogen
discharger
may
obtain
a
compliance
schedule
when
the
existing
permit
for
that
discharge
is
issued,
reissued
or
modified
to
contain
more
stringent
limits
based
on
the
water
quality
criteria
in
today's
proposed
rule.
Such
compliance
schedules,
however,
would
not
be
able
to
be
extended
indefinitely
because
the
compliance
schedule
provision
in
this
rule
limits
the
length
of
a
compliance
schedule
for
any
facility
to
a
maximum
of
five
years.

EPA
recognizes
that
where
a
permit
is
modified
during
the
permit
term,
and
the
permittee
needs
the
full
five
years
to
comply,
the
five­
year
schedule
may
extend
beyond
the
term
of
the
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modified
permit.
In
such
cases,
the
rule
allows
for
the
modified
permit
to
contain
a
compliance
schedule
with
an
interim
limit
by
the
end
of
the
permit
term.
When
the
permit
is
reissued,
the
permit
authority
may
extend
the
compliance
schedule
in
the
next
permit,
provided
that,
taking
into
account
the
amount
of
time
allowed
under
the
previous
permit,
the
entire
compliance
schedule
contained
in
the
permit
shall
not
exceed
five
years.
Final
permit
limits
and
compliance
dates
will
be
included
in
the
record
for
the
permit.
Final
compliance
dates
for
any
WQBEL
must
occur
within
five
years
from
the
date
of
permit
issuance,
reissuance,
or
modification.

Antibacksliding:
EPA
wishes
to
address
the
potential
concern
over
antibacksliding
where
revised
permit
limits
based
on
new
information
are
the
result
of
the
completion
of
additional
studies.
The
Agency's
interpretation
of
the
CWA
is
that
the
antibacksliding
requirements
of
section
402(
o)
of
the
CWA
do
not
apply
to
revisions
to
effluent
limitations
made
before
the
scheduled
date
of
compliance
for
those
limitations.

EPA
is
requesting
comment
on
the
setting
and
use
of
compliance
schedules
to
provide
permitted
dischargers
time
to
meet
their
permit
effluent
limitations
based
on
today's
proposed
bacteria
criteria.
Compliance
schedules
can
be
set
as
part
of
the
water
quality
standard
or
as
part
of
the
implementing
regulations;
in
this
specific
case,
the
standard
is
authorizing
the
use
of
compliance
schedules
in
cases
where
the
permitting
authority
determines
it
would
be
appropriate.

EPA
is
interested
in
views
concerning
the
duration
of
the
schedule.
Today's
proposal
limits
compliance
schedules
to
a
period
not
to
exceed
five
years.
It
also
requires
interim
limits
where
the
five
year
term
exceeds
the
length
of
time
remaining
in
the
permit
after
modification
and
requires
specific
milestones
and
reporting
on
an
annual
basis.
EPA
is
interested
in
whether
the
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limitation
of
five
years
for
compliance
schedules
is
reasonable
or
should
longer
schedules
be
allowed
for
certain
permit
activities
that
require
extensive
studies
and
construction
activities
(
e.
g.,

long
term
control
plans
associated
with
combined
sewer
overflows).

VI.
Economic
Analysis
These
water
quality
standards
may
serve
as
a
basis
for
development
of
NPDES
permit
limits.
Many
of
the
affected
jurisdictions
(
i.
e.,
States
and
Territories)
are
the
NPDES
permitting
authorities,
which
retain
considerable
discretion
in
implementing
standards.
EPA
evaluated
the
potential
costs
to
NPDES
dischargers
in
affected
jurisdictions
associated
with
future
State
and
Territorial
implementation
of
EPA's
Federal
standards.
This
analysis
is
documented
in
"
Economic
Analysis
for
Proposed
Water
Quality
Standards
for
Coastal
Recreation
Waters,"

which
can
be
found
in
the
record
for
this
rulemaking.

Any
NPDES­
permitted
facility
that
discharges
to
water
bodies
affected
by
this
proposed
rule
could
potentially
incur
costs
to
comply
with
the
rule's
provisions.
The
types
of
affected
facilities
may
include
industrial
facilities
and
publicly
owned
treatment
works
(
POTWs)

discharging
sanitary
wastewater
to
surface
waters
(
i.
e.,
point
sources).
EPA
addresses
discharges
of
bacteria
from
municipal
separate
storm
sewer
systems,
combined
sewer
overflows
(
CSOs),
and
sanitary
sewer
overflows
(
SSOs)
to
coastal
waters
in
existing
and
anticipated
regulations
and
policies,
and
has
tallied
potential
control
costs
as
part
of
analyses
for
these
actions.
Therefore,
to
avoid
double
counting,
EPA
did
not
estimate
such
costs
for
this
rule.
EPA
did
not
evaluate
concentrated
animal
feeding
operations
(
CAFOs)
because
Section
301(
a)
of
the
CWA
prohibits
point
sources,
including
CAFOs,
from
discharging
to
surface
waters
without
a
permit,
and
because
NPDES
permits
for
CAFOs
in
turn
prohibit
discharges.
EPA
does
not
have
data
to
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suggest
that
the
proposed
rule
would
result
in
increased
requirements
for
total
maximum
daily
loads.
Finally,
EPA
did
not
evaluate
the
potential
for
costs
to
nonpoint
sources,
such
as
agricultural
runoff,
and
did
not
attempt
to
quantify
the
potential
benefits
of
the
proposed
rule.

EPA
recognizes
that
a
State
or
Territory
may
decide
to
require
controls
for
nonpoint
sources
(
e.
g.,
agricultural
runoff)
or
point
source
discharges
(
e.
g.,
CSOs
and
SSOs)
due
to
wet
weather
events.
However,
as
a
technical
matter,
these
sources
are
difficult
to
model
and
evaluate
with
respect
to
potential
costs
impacts
because
they
are
intermittent,
highly
variable,
and
occur
under
different
hydrologic
or
climatic
conditions
than
continuous
discharges
from
industrial
and
municipal
facilities,
which
EPA
evaluates
under
critical
low
flow
or
drought
conditions.
Also,

data
on
instream
and
discharge
levels
of
bacteria
after
States
have
implemented
controls
to
meet
current
water
quality
standards
based
on
fecal
coliform
are
not
available.
Therefore,
trying
to
determine
which
sources
would
not
achieve
standards
based
on
E.
coli
or
enterococci
after
complying
with
existing
regulations
and
policies
may
not
be
possible,
or
would
be
extremely
time
and
resource
intensive.
Finally,
it
is
likely
that
any
controls
needed
to
meet
existing
standards
(
i.
e.,
based
on
fecal
coliform
)
would
also
remedy
any
water
quality
problems
indicated
by
standards
based
on
E.
coli
or
enterococci.

A.
Identifying
Affected
Facilities
EPA
identified
approximately
850
facilities
from
28
States
and
Territories
that
may
be
affected
by
the
proposed
rule.
Of
these
potentially
affected
facilities,
362
are
classified
as
major
dischargers,
and
488
are
minor
dischargers.
EPA
did
not
include
general
permit
facilities
in
its
analysis
because
data
for
such
facilities
are
extremely
limited,
and
flows
are
usually
negligible.

Furthermore,
EPA
could
not
determine
if
any
of
these
facilities
actually
discharge
to
the
affected
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water
bodies
because
location
information
is
not
available
in
EPA's
PCS
database.

EPA
assumed
that
only
facilities
located
in
jurisdictions
included
in
the
proposed
rule
that
discharge
within
2
miles
of
coastal
waters
or
the
Great
Lakes
may
be
affected.
EPA
identified
these
facilities
by
relating
facility
information
to
the
potentially
affected
waters
using
GIS
software.
EPA
also
assumed
that
only
wastewater
treatment
plants
or
facilities
with
similar
effluent
characteristics
(
i.
e.,
facilities
having
the
potential
to
discharge
bacteria)
would
potentially
be
affected
by
the
proposed
rule.
For
those
facilities
for
which
latitude/
longitude
data
are
not
included
in
PCS,
EPA
included
only
facilities
for
which
the
receiving
water
body
name
in
PCS
indicates
a
coastal
water
(
e.
g.,
Pacific
Ocean,
Lake
Erie).
Table
4
summarizes
these
potentially
affected
facilities
by
type
and
category.

Table
4.
Potentially
Affected
Facilities1
Category
Number
of
Facilities
Total
Major2
Minor
Municipal
Other3
Coastal
298
283
108
689
Great
Lakes
64
76
21
161
Total
362
359
129
850
Table
4.
Potentially
Affected
Facilities1
Category
Number
of
Facilities
Total
Major2
Minor
Municipal
Other3
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1.
Facilities
from
States
and
Territories
included
in
the
proposed
rule
that
discharge
within
two
miles
of
coastal
waters
or
the
Great
Lakes.

2.
No
major
industrial
facilities
are
affected
by
the
proposed
rule.
However,
6
other
facilities
(
SIC
codes
9711
and
9999)
are
included
because
their
names
indicate
that
they
are
wastewater
treatment
plants.

3.
Includes
the
following
SICs:
eating
places
(
5812),
drinking
places
(
5813),
operators
of
nonresidential
buildings
(
6512),
operators
of
apartment
buildings
(
6513),
operators
of
dwellings
other
than
apartment
buildings
(
6514),

operators
of
residential
mobile
home
sites
(
6515),
hotels
and
motels
(
7011),
recreational
vehicle
parks
and
campsites
(
7033),
organization
hotels
and
lodging
houses
(
7041),
physical
fitness
facilities
(
7991),
amusement
and
recreation
services
(
7999),
skilled
nursing
care
facilities
(
8051),
general
medical
and
surgical
hospitals
(
8062),
elementary
and
secondary
schools
(
8211),
colleges,
universities,
and
professional
schools
(
8221),
civic,

social,
and
fraternal
associations
(
8641),
private
households
(
8811).
Also
includes
the
following
SICs
if
the
facility
name
suggests
that
they
may
discharge
sanitary
waste:
operative
builders
(
1531),
sanitary
services,
not
elsewhere
classified
(
4959),
real
estate
agents
and
managers
(
6531),
business
associations
(
8611),
religious
organizations
(
8661),
services
not
elsewhere
classified
(
8999),
air
and
water
resource
and
solid
waste
management
(
9511),
nonclassifiable
establishments
(
9999).

B.
Method
for
Estimating
Potential
Compliance
Costs
To
estimate
costs,
EPA
evaluated
the
15
major
municipal
facilities
with
design
flows
greater
than
120
mgd,
thus
ensuring
that
the
facilities
with
potential
for
the
largest
costs
would
be
evaluated.
For
the
remaining
facilities,
EPA
evaluated
a
sample
of
facilities
to
represent
discharger
type
and
category.

The
proposed
standards
are
for
the
affected
waters,
and
permitting
authorities
have
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flexibility
in
implementing
the
criteria.
Facilities
in
some
States
that
have
adopted
the
1986
criteria
have
effluent
limits
for
E.
coli
or
enterococci,
and
in
other
such
States,
facilities
do
not
have
bacteria
limits.
To
be
conservative
(
i.
e.,
err
on
the
side
of
higher
costs),
EPA
assumed
that
potentially
affected
facilities
would
be
required
to
meet
both
the
applicable
geometric
mean
and
SSM
(
although
EPA's
bacteria
implementation
guidance
indicates
that
the
intent
of
the
SSM
value
is
not
for
permitting).

PCS
does
not
contain
E.
coli
or
enterococci
effluent
data
for
any
of
the
sample
facilities.

Therefore,
to
evaluate
potential
costs
associated
with
the
E.
coli
criteria,
EPA
assumed
that
100%

of
the
fecal
coliform
measured
is
E.
coli
because
E.
coli
is
a
type
of
fecal
coliform.
EPA
estimated
that
facilities
with
average
monthly
effluent
levels,
based
on
the
last
3
years
of
data,

exceeding
a
geometric
mean
of
126
fecal
coliform/
100
mL,
or
maximum
daily
levels
exceeding
235
fecal
colonies/
100
mL,
would
need
treatment
controls
to
meet
potential
permit
limits
based
on
the
proposed
criteria.

In
comparison,
enterococci
are
fecal
bacteria
in
the
fecal
streptococcus
group,
and
the
relationship
to
fecal
coliform
bacteria
is
uncertain.
Therefore,
for
coastal
facilities,
EPA
used
data
and
information
in
the
literature
regarding
the
ratio
of
fecal
coliform
to
enterococci
in
untreated
sewage,
and
the
inactivation
of
both
of
these
bacteria
at
minimum
disinfection
levels,
to
identify
the
concentrations
of
fecal
coliform
that
may
indicate
a
need
for
controls.
Again,
EPA
compared
fecal
coliform
levels
over
the
last
three
years
to
both
the
proposed
geometric
mean
and
SSM
enterococci
criteria
values.

Experiences
from
facilities
currently
meeting
the
proposed
E.
coli
and
enterococci
criteria,

as
well
as
the
current
fecal
coliform
criteria,
suggest
that
chlorination
processes
can
be
upgraded
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or
adjusted
to
produce
the
levels
of
bacteria
necessary
for
compliance
with
the
proposed
rule.

Therefore,
EPA
estimated
that
optimization
of
existing
disinfection
processes
would
enable
the
sample
facilities
to
comply
with
the
proposed
rule.
Process
optimization
usually
involves
process
analysis
and
process
modifications,
and
EPA's
cost
estimates
include
both
capital
and
operating
and
maintenance
costs.

C.
Results
Based
on
the
potential
costs
for
the
15
facilities
with
flows
greater
than
120
mgd,
and
extrapolating
costs
for
a
sample
of
60
facilities
to
the
remaining
835
facilities
potentially
affected
by
the
proposed
rule,
EPA
estimated
a
total
annual
cost
of
approximately
$
22
million
($
15
million
for
coastal
facilities,
and
$
7
million
for
Great
Lakes
facilities).
However,
this
estimate
is
based
on
assumptions
regarding
how
States
and
Territorial
will
implement
the
proposed
standards
that
may
overstate
the
actual
cost
impacts.

VII.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866:
Regulatory
Planning
and
Review
Under
Executive
Order
12866,
(
58
FR
51735
(
October
4,
1993))
the
Agency
must
determine
whether
the
regulatory
action
is
"
significant"
and
therefore
subject
to
OMB
review
and
the
requirements
of
the
Executive
Order.
The
Order
defines
"
significant
regulatory
action"
as
one
that
is
likely
to
result
in
a
rule
that
may:

(
1)
have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,

public
health
or
safety,
or
State,
local,
or
tribal
governments
or
communities;

(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
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another
agency;

(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.

Pursuant
to
the
terms
of
Executive
Order
12866,
it
has
been
determined
that
this
rule
is
a
"
significant
regulatory
action"
because
the
rule
raises
novel
policy
issues
arising
out
of
the
BEACH
Act.
As
such,
this
action
was
submitted
to
OMB
for
review.
Changes
made
in
response
to
OMB
suggestions
or
recommendations
will
be
documented
in
the
public
record.

B.
Paperwork
Reduction
Act
This
action
does
not
impose
an
information
collection
burden
under
the
provisions
of
the
Paperwork
Reduction
Act
(
44
U.
S.
C.
3501
et
seq.).
It
does
not
include
any
information
collection,
reporting,
or
record­
keeping
requirements.

Burden
means
the
total
time,
effort
or
financial
resources
expended
by
persons
to
generate,
maintain,
retain,
or
disclose
or
provide
information
to
or
for
a
Federal
agency.
This
includes
the
time
needed
to
review
instructions;
develop,
acquire,
install,
and
utilize
technology
and
systems
for
the
purposes
of
collecting,
validating,
and
verifying
information,
processing
and
maintaining
information,
and
disclosing
and
providing
information;
adjust
the
existing
ways
to
comply
with
any
previously
applicable
instructions
and
requirements;
train
personnel
to
be
able
to
respond
to
a
collection
of
information;
search
data
sources;
complete
and
review
the
collection
of
information;
and
transmit
or
otherwise
disclose
the
information.

An
Agency
may
not
conduct
or
sponsor,
and
a
person
is
not
required
to
respond
to
a
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collection
of
information
unless
it
displays
a
currently
valid
OMB
control
number.
The
OMB
control
numbers
for
EPA's
regulations
in
40
CFR
are
listed
in
40
CFR
part
9.

C.
Regulatory
Flexibility
Act
The
Regulatory
Flexibility
Act
(
RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et
seq.,
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
unless
the
agency
certifies
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
Small
entities
include
small
businesses,
small
organizations
and
small
governmental
jurisdictions.

For
purposes
of
assessing
the
impacts
of
today's
proposed
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
a
small
business
according
to
RFA
default
definitions
for
small
business
(
based
on
SBA
size
standards);
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)

a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.

After
considering
these
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
proposed
rule
will
not
impose
any
requirements
on
small
entities.
The
RFA
requires
analysis
of
the
impacts
of
a
rule
on
the
small
entities
subject
to
the
rule's
requirements.

See
United
States
Distribution
Companies
v.
FERC,
88
F.
3d
1105,
1170
(
D.
C.
Cir.
1996).

Today's
proposed
rule
establishes
no
requirements
applicable
to
small
entities,
and
so
is
not
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susceptible
to
regulatory
flexibility
analysis
as
prescribed
by
the
RFA.
("[
N]
o
[
regulatory
flexibility]
analysis
is
necessary
when
an
agency
determines
that
the
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities
that
are
subject
to
the
requirements
of
the
rule,''
United
Distribution
at
1170,
quoting
Mid­
Tex
Elec.
Co­
op
v.
FERC,
773
F.
2d
327,
342
(
D.
C.
Cir.
1985)
(
emphasis
added
by
United
Distribution
court).)

CWA
section
303(
i)(
2)(
A)
requires
that
if
a
State
or
Territory
fails
to
adopt
water
quality
criteria
and
standards
in
accordance
with
paragraph
(
1)(
A)
that
are
as
protective
of
human
health
as
the
criteria
for
pathogen
indicators
for
coastal
recreation
waters
published
by
the
Administrator,
the
Administrator
shall
promptly
propose
regulations
for
the
State
or
Territory
setting
forth
revised
or
new
water
quality
standards
for
pathogen
indicators
described
in
paragraph
(
1)(
A)
for
coastal
recreation
waters
of
the
State
or
Territory.
These
State
standards
(
or
EPA­
promulgated
standards)
are
implemented
through
various
water
quality
control
programs
including
the
NPDES
program,
which
limits
discharges
to
navigable
waters
except
in
compliance
with
an
NPDES
permit.
The
CWA
requires
that
all
NPDES
permits
include
any
limits
on
discharges
that
are
necessary
to
meet
applicable
water
quality
standards.

Thus,
under
the
CWA,
EPA's
promulgation
of
water
quality
standards
establishes
standards
that
the
State
generally
implements
through
the
NPDES
permit
process.
In
this
case,

EPA
Regional
Offices
are
the
NPDES
permitting
authority
in
five
of
the
States
and
Territories
subject
to
today's
proposal.
EPA
Regions
1,
2,
9
and
10
are
the
permitting
authorities
for
Massachusetts,
Puerto
Rico,
the
Commonwealth
of
the
Northern
Mariana
Islands,
for
some
permits
in
Hawaii,
and
Alaska,
respectively.
As
such,
EPA
Regions
1,
2,
9,
and
10
have
discretion
in
developing
discharge
limits
as
needed
to
meet
the
standards.
While
these
Regions'
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implementation
of
Federally
promulgated
water
quality
standards
may
result
in
new
or
revised
discharge
limits
being
placed
on
small
entities,
the
standards
themselves
do
not
apply
to
any
discharger,
including
small
entities.

Today's
proposed
rule,
as
explained
earlier,
does
not
itself
establish
any
requirements
that
are
applicable
to
small
entities.
As
a
result
of
this
action,
States,
Territories,
and
EPA
Regional
offices
will
need
to
ensure
that
permits
they
issue
include
any
limitations
on
discharges
necessary
to
comply
with
the
standards
established
in
the
final
rule.
In
doing
so,
the
States,
Territories,
and
EPA
Regions
will
have
a
number
of
choices
associated
with
permit
writing.
While
the
implementation
of
the
rule
may
ultimately
result
in
some
new
or
revised
permit
conditions
for
some
dischargers,
EPA's
action
today
does
not
impose
any
of
these
as
yet
unknown
requirements
on
small
entities.

D.
Unfunded
Mandates
Reform
Act
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(
UMRA),
P.
L.
104­
4,
establishes
requirements
for
Federal
agencies
to
assess
the
effects
of
their
regulatory
actions
on
State,
local,

and
Tribal
governments
and
the
private
sector.
The
definition
of
"
State"
for
the
purposes
of
UMRA
includes
"
a
territory
or
possession
of
the
United
States."
Under
section
202
of
the
UMRA,
EPA
generally
must
prepare
a
written
statement,
including
a
cost­
benefit
analysis,
for
proposed
and
final
rules
with
"
Federal
mandates"
that
may
result
in
expenditures
to
State,
local,

and
Tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
an
EPA
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
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achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
of
why
that
alternative
was
not
adopted.
Before
EPA
establishes
any
regulatory
requirements
that
may
significantly
or
uniquely
affect
small
governments,
including
Tribal
governments,
it
must
have
developed
under
section
203
of
the
UMRA
a
small
government
agency
plan.
The
plan
must
provide
for
notifying
potentially
affected
small
governments,
enabling
officials
of
affected
small
governments
to
have
meaningful
and
timely
input
in
the
development
of
EPA
regulatory
proposals
with
significant
Federal
intergovernmental
mandates,
and
informing,
educating,
and
advising
small
governments
on
compliance
with
the
regulatory
requirements.

Today's
proposed
rule
contains
no
Federal
mandates
(
under
the
regulatory
provisions
of
Title
II
of
the
UMRA)
for
State,
local
or
Tribal
governments
or
the
private
sector.
The
proposed
rule
imposes
no
enforceable
duty
on
the
States
subject
to
today's
proposal,
or
any
other
State,

local
or
Tribal
governments
or
the
private
sector;
rather,
this
rule
proposes
bacteria
criteria
for
coastal
and
Great
Lakes
recreation
waters
for
the
States
and
Territories
included
in
this
proposed
rule.
The
States,
Territories,
and
EPA
may
use
these
resulting
water
quality
standards
in
implementing
their
water
quality
control
programs.
Today's
proposed
rule
does
not
regulate
or
affect
any
entity
and,
therefore,
is
not
subject
to
the
requirements
of
sections
202
and
205
of
the
UMRA.

EPA
has
determined
that
this
proposed
rule
contains
no
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.
As
stated,
the
proposed
rule
imposes
no
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enforceable
requirements
on
any
party,
including
small
governments.
Thus,
this
proposed
rule
is
not
subject
to
the
requirements
of
section
203
of
the
UMRA.

E.
Executive
Order
13132:
Federalism
Executive
Order
13132,
entitled
"
Federalism"
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
Federalism
implications."
"
Policies
that
have
Federalism
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government."

This
proposed
rule
does
not
have
Federalism
implications.
It
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,

or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
EPA's
authority
and
responsibility
to
promulgate
Federal
water
quality
standards
when
State
standards
do
not
meet
the
requirements
of
the
CWA
is
well
established
and
has
been
used
on
various
occasions
in
the
past.
The
proposed
rule
would
not
substantially
affect
the
relationship
of
EPA
and
the
States
and
Territories,
or
the
distribution
of
power
or
responsibilities
between
EPA
and
the
various
levels
of
government.
The
proposed
rule
would
not
alter
the
States'
or
Territories'
considerable
discretion
in
implementing
these
water
quality
standards.
Further,
this
proposed
rule
would
not
preclude
the
States
and
Territories
from
adopting
water
quality
standards
that
meet
the
requirements
of
the
CWA,
either
before
or
after
promulgation
of
the
final
rule,
thus
eliminating
the
need
for
Federal
standards.
Thus,
Executive
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Order
13132
does
not
apply
to
this
proposed
rule.

Although
Executive
Order
13132
does
not
apply
to
this
rule,
EPA
did
consult
with
representatives
of
the
States
and
Territories
subject
to
CWA
section
303(
i)
in
developing
this
rule.

Prior
to
this
proposed
rulemaking
action,
EPA
had
numerous
phone
calls,
meetings
and
exchanges
of
written
correspondence
with
the
States
to
discuss
EPA's
concerns
with
the
States'

bacteria
criteria,
compliance
with
the
BEACH
Act,
and
the
Federal
rulemaking
process.
In
June
2000
EPA
and
the
Association
of
State
and
Interstate
Water
Pollution
Control
Administrators
(
ASIWPCA)
established
a
State/
EPA
Work
Group
on
Water
Quality
Standards,
composed
of
selected
senior
State
and
EPA
managers,
to
provide
input
to
EPA
on
water
quality
standards
issues.
The
group
has
met
approximately
three
times
per
year
since
then,
beginning
with
a
meeting
in
September
2000.
At
every
meeting
the
group
has
discussed
the
scientific,

programmatic,
and
policy
aspects
of
bacteria
criteria
for
both
coastal
and
non­
coastal
recreation
waters,
and
has
provided
useful
input
to
EPA
on
these
topics.
Members
of
this
group,
together
with
other
interested
State
participants,
have
also
served
as
an
ad­
hoc
work
group
since
2001
to
assist
EPA
in
developing
draft
detailed
scientific
and
policy
guidance
(
Implementation
Guidance
for
Ambient
Water
Quality
Criteria
for
Bacteria,
May
2002
Draft,
EPA­
823­
B­
02­
003)

concerning
adoption
and
implementation
of
EPA's
recommended
criteria
for
bacteria.
EPA
will
continue
to
work
with
the
States
and
Territories
before
finalizing
these
water
quality
standards.

In
the
spirit
of
Executive
Order
13132,
and
consistent
with
EPA
policy
to
promote
communications
between
EPA
and
State
and
local
governments,
EPA
specifically
solicits
comment
on
this
proposed
rule
from
State
and
local
officials.

F.
Executive
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
(
1:
21PM)
78
Executive
Order
13175,
entitled
"
Consultation
and
Coordination
with
Indian
Tribal
Governments"
(
65
FR
67249,
November
6,
2000),
requires
EPA
to
develop
an
accountable
process
to
ensure
"
meaningful
and
timely
input
by
tribal
officials
in
the
development
of
regulatory
policies
that
have
tribal
implications."
"
Policies
that
have
tribal
implications"
is
defined
in
the
Executive
Order
to
include
regulations
that
have
"
substantial
direct
effects
on
one
or
more
Indian
tribes,
on
the
relationship
between
the
Federal
government
and
the
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes."

This
proposed
rule
does
not
have
tribal
implications.
It
will
not
have
substantial
direct
effects
on
tribal
governments,
on
the
relationship
between
the
Federal
government
and
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes,
as
specified
in
Executive
Order
13175.
There
are
four
authorized
Indian
Tribes
with
coastal
or
Great
Lakes
waters;
however,
they
have
not
yet
adopted
water
quality
standards,
and
therefore,
have
no
designated
coastal
recreation
waters
within
their
jurisdiction.
These
tribes
are
therefore
not
subject
to
today's
proposed
rule.
Thus,
Executive
Order
13175
does
not
apply
to
this
rule.

EPA
has
contacted
those
Tribes
identified
as
having
coastal
or
Great
Lakes
waters
to
inform
them
of
the
potential
future
impact
this
proposal
could
have
on
Tribal
waters.
EPA
specifically
solicits
additional
comment
on
this
proposed
rule
from
tribal
officials.

G.
Executive
Order
13045:
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
Executive
Order
13045:
"
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks"
(
62
FR
19885,
April
23,
1997)
applies
to
any
rule
that:
(
1)
is
determined
to
be
Deliberative
product:
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not
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or
quote
July
8,
2004
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79
"
economically
significant"
as
defined
under
Executive
Order
12866,
and
(
2)
concerns
an
environmental
health
or
safety
risk
that
EPA
has
reason
to
believe
may
have
a
disproportionate
effect
on
children.
If
the
regulatory
action
meets
both
criteria,
the
Agency
must
evaluate
the
environmental
health
or
safety
effects
of
the
planned
rule
on
children,
and
explain
why
the
planned
regulation
is
preferable
to
other
potentially
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.

This
proposed
rule
is
not
subject
to
the
Executive
Order
because
it
is
not
economically
significant
as
defined
in
Executive
Order
12866.

H.
Executive
Order
13211:
Actions
that
Significantly
Affect
Energy
Supply,
Distribution,
or
Use
This
rule
is
not
a
"
significant
energy
action"
as
defined
in
Executive
Order
13211,

"
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use"

(
66
FR
28355
(
May
22,
2001))
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
EPA
estimates
that
compliance
with
the
proposed
rule
will
create
a
negligible
increase
in
nationwide
energy
consumption
for
point
source
facilities
discharging
to
coastal
recreation
waters
in
affected
States.
In
Section
VI,
EPA
presented
its
estimated
incremental
costs
to
permitted
facilities
as
a
result
of
the
proposed
rule.
Some
of
these
costs
include
energy
use
associated
with
increased
maintenance
of
disinfection
tanks.
EPA
estimates
that
the
increased
energy
use
from
these
activities
would
be
about
140,000
kilowatt
hours.
Net
production
by
electric
power
generation
facilities
in
the
United
States
in
2002
was
3,858,452
million
kilowatt
hours
(
Energy
Information
Administration,
Department
of
Energy,

http://
www.
eia.
doe.
gov/
neic/
quickfacts/
quickelectric.
htm).
EPA
estimates
that
the
additional
energy
requirements
of
EPA's
rule
are
insignificant
(
i.
e.,
0.000004%
of
national
energy
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
(
1:
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80
generation).

I.
National
Technology
Transfer
and
Advancement
Act
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
("
NTTAA"),
Public
Law
104­
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.

While
ambient
water
quality
criteria
may
be
considered
technical
standards
EPA
is
not
aware
of
any
voluntary
consensus
standards
relating
to
bacteria
criteria
to
protect
human
health.

Furthermore,
even
if
there
were
such
voluntary
consensus
standards
the
BEACH
Act
specifically
directs
EPA
to
promulgate
Federal
standards
based
on
its
own
bacteria
criteria,
published
in
accordance
with
CWA
section
304(
a),
in
cases
where
States
fail
to
do
so.
Therefore,
EPA
is
not
considering
the
use
of
any
voluntary
consensus
standards.

List
of
Subjects
in
40
CFR
Part
131
Environmental
protection,
Intergovernmental
relations,
Reporting
and
recordkeeping
requirements,
Water
pollution
control.
Water
Quality
Standards
for
Coastal
and
Great
Lakes
Recreation
Waters
Page
81
of
86
Deliberative
product:
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not
distribute
or
quote
July
8,
2004
(
1:
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81
Dated:

Michael
O.
Leavitt,

Administrator.

For
the
reasons
set
out
in
the
preamble,
EPA
proposes
to
amend
40
CFR
part
131
as
follows:

PART
131­­
WATER
QUALITY
STANDARDS
1.
The
authority
citation
for
part
131
continues
to
read
as
follows:

Authority:
33
U.
S.
C.
1251
et
seq.

Subpart
D
­­
[
Amended]

2.
Section
131.41
is
added
to
read
as
follows:

§
131.41
Bacteriological
criteria
for
those
states
not
complying
with
Clean
Water
Act
section
303(
i)(
1)(
A).

(
a)
Scope.
This
section
is
a
promulgation
of
the
Clean
Water
Act
section
304(
a)
criteria
for
bacteria
for
coastal
recreation
waters
in
specific
States.
It
is
not
a
general
promulgation
of
the
Clean
Water
Act
section
304(
a)
criteria
for
bacteria.
This
section
also
contains
a
compliance
schedule
provision.
Deliberative
product:
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not
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quote
July
8,
2004
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82
(
b)
Definitions.
(
1)
Coastal
Recreation
Waters
are
the
Great
Lakes
and
marine
coastal
waters
(
including
coastal
estuaries)
that
are
designated
under
section
303(
c)
of
the
Clean
Water
Act
for
use
for
swimming,
bathing,
surfing,
or
similar
water
contact
activities.
Coastal
recreation
waters
do
not
include
inland
waters
or
waters
upstream
from
the
mouth
of
a
river
or
stream
having
an
unimpaired
natural
connection
with
the
open
sea.

(
2)
Designated
bathing
beach
waters
are
those
coastal
recreation
waters
that,
during
the
recreation
season,
are
heavily­
used
or
where
a
lifeguard
or
bathhouse
facilities
or
public
parking
are
present.
States
may
include
any
other
waters
in
this
category
even
if
the
waters
do
not
meet
these
criteria.

(
3)
Moderate
use
coastal
recreation
waters
are
those
coastal
recreation
waters
that
are
not
designated
bathing
beach
waters
but
typically,
during
the
recreation
season,
have
at
least
half
of
the
number
of
people
than
at
typical
designated
bathing
beach
waters
within
the
State.
States
may
also
include
light
use
or
infrequent
use
coastal
recreation
waters
in
this
category.

(
4)
Light
use
coastal
recreation
waters
are
those
coastal
recreation
waters
that
are
not
designated
bathing
beach
waters
but
typically,
during
the
recreation
season,
have
less
than
half
of
the
number
of
people
than
at
typical
designated
bathing
beach
waters
within
the
State,
but
are
more
than
infrequently
used.
States
may
also
include
infrequent
use
coastal
recreation
waters
in
this
category.

(
5)
Infrequent
use
coastal
recreation
waters
are
those
coastal
recreation
waters
that
are
rarely
or
occasionally
used.

(
6)
New
pathogen
discharger
for
the
purposes
of
this
rule
means
any
building,
structure,
facility,

or
installation
from
which
there
is
or
may
be
a
discharge
of
pathogens,
the
construction
of
which
Deliberative
product:
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not
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or
quote
July
8,
2004
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83
commenced
on
or
after
[
INSERT
THE
EFFECTIVE
DATE
OF
THE
RULE].

(
7)
Existing
pathogen
discharger
for
the
purposes
of
this
rule
means
any
discharger
that
is
not
a
new
pathogen
discharger.

(
c)
EPA's
section
304(
a)
ambient
water
quality
criteria
for
bacteria.

(
1)
Fresh
waters:

A
Indicator
B
Geometric
mean
C
Single
Sample
Maximum
(
per
100
ml)

C1
Designated
bathing
beach
(
75%
confidence
level)
C2
Moderate
use
coastal
recreation
waters
(
82%
confidence
level)
C3
Light
use
coastal
recreation
waters
(
90%
confidence
level)
C4
Infrequent
use
coastal
recreation
waters
(
95%
confidence
level)

E.
coli
126/
100
mla
235b
298b
409b
575b
Footnotes
to
table
in
paragraph
(
c)(
1):
a.
This
value
is
for
use
with
analytical
methods
1106.1
or
1600
or
any
equivalent
viable
method.
b.
Calculated
using
the
following:
single
sample
maximum
=
geometric
mean
*
10^(
confidence
level
factor
*
log
standard
deviation),
where
the
confidence
level
factor
is:
75%:
0.68;
82%:
0.94;
90%:
1.28;
95%:
1.65.
The
log
standard
deviation
from
EPA's
epidemiological
studies
is
0.4.

(
2)
Marine
waters:

A
Indicator
B
Geometric
mean
C
Single
Sample
Maximum
(
per
100
ml)

C1
Designated
bathing
beach
(
75%
confidence
level)
C2
Moderate
use
coastal
recreation
waters
(
82%
confidence
level)
C3
Light
use
coastal
recreation
waters
(
90%
confidence
level)
C4
Infrequent
use
coastal
recreation
waters
(
95%
confidence
level)

Enterococci
35/
100
mla
104b
158b
276b
501b
Footnotes
to
table
in
paragraph
(
c)(
2):
a.
This
value
is
for
use
with
analytical
methods
1103.1,
1603,
or
1604
or
any
equivalent
viable
method.
b.
Calculated
using
the
following:
single
sample
maximum
=
geometric
mean
*
10^(
confidence
level
factor
*
log
standard
deviation),
where
the
confidence
level
factor
is:
75%:
0.68;
82%:
0.94;
90%:
1.28;
95%:
1.65.
The
log
standard
deviation
from
EPA's
epidemiological
studies
is
0.7.

(
3)
As
an
alternative
to
the
single
sample
maximum
in
paragraph
(
c)(
1)
or
(
c)(
2)
of
this
section,

States
may
use
a
site­
specific
log
standard
deviation
to
calculate
a
single
sample
maximum
for
individual
coastal
recreation
waters,
but
must
use
at
least
30
samples
to
do
so.
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84
(
d)
Applicability.
(
1)
The
criteria
in
paragraph
(
c)
of
this
section
apply
to
the
coastal
recreation
waters
of
the
States
identified
in
paragraph
(
e)
of
this
section
and
apply
concurrently
with
any
ambient
recreational
water
criteria
adopted
by
the
State,
except
for
those
coastal
recreation
waters
where
State
regulations
contain
criteria
approved
by
EPA
as
meeting
the
requirements
of
Clean
Water
Act
section
303(
i),
in
which
case
the
State's
criteria
for
those
coastal
recreation
waters
will
apply
and
not
the
criteria
in
paragraph
(
c)
of
this
section.

(
2)
The
criteria
established
in
this
section
are
subject
to
the
State's
general
rules
of
applicability
in
the
same
way
and
to
the
same
extent
as
are
other
Federally­
adopted
and
State­
adopted
numeric
criteria
when
applied
to
the
same
use
classifications.

(
e)
Applicability
to
specific
jurisdictions.
(
1)
The
criteria
in
paragraph
(
c)(
1)
of
this
section
apply
to
fresh
coastal
recreation
waters
of
the
following
States:
Illinois,
Minnesota,
New
York,
Ohio,

Pennsylvania,
Wisconsin.

(
2)
The
criteria
in
paragraph
(
c)(
2)
of
this
section
apply
to
marine
coastal
recreation
waters
of
the
following
States:
Alaska,
California
(
except
for
coastal
recreation
waters
within
the
jurisdiction
of
Regional
Board
4),
Delaware
(
except
for
waters
with
human
sources
of
fecal
contamination),

Florida,
Georgia,
Hawaii
(
except
for
non­
estuarine
coastal
recreation
waters
within
300
meters
of
the
shoreline),
Louisiana,
Maine
(
except
for
SB
and
SC
waters
with
human
sources
of
fecal
contamination),
Maryland,
Massachusetts,
Mississippi,
New
York,
North
Carolina,
Oregon,

Puerto
Rico
(
except
for
waters
classified
by
Puerto
Rico
as
intensely
used
for
primary
contact
recreation),
Rhode
Island,
South
Carolina,
United
States
Virgin
Islands,
Washington.

(
3)
The
criteria
in
column
C
of
paragraph
(
c)(
2)
of
this
section
apply
to
marine
coastal
recreation
waters
of
the
following
States:
Commonwealth
of
the
Northern
Mariana
Islands,
Hawaii
(
for
non­
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product:
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July
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2004
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85
estuarine
coastal
recreation
waters
within
300
meters
of
shore).

(
f)
Schedules
of
compliance.
(
1)
Subsection
(
f)
applies
to
any
State
that
does
not
have
a
regulation
in
effect
for
Clean
Water
Act
purposes
that
authorizes
compliance
schedules
subject
to
this
paragraph,
except
for
[
INSERT
LIST
OF
STATES
AND
TERRITORIES
THAT
TELL
EPA
IN
WRITING
THAT
THEY
DO
NOT
WANT
TO
ALLOW
A
SCHEDULE
OF
COMPLIANCE].
All
dischargers
shall
promptly
comply
with
any
new
or
more
restrictive
water
quality­
based
effluent
limitations
based
on
the
water
quality
criteria
set
forth
in
this
section.

(
2)
When
a
permit
issued
on
or
after
[
INSERT
THE
EFFECTIVE
DATE
OF
THE
RULE]
to
a
new
pathogen
discharger
as
defined
in
paragraph
(
b)
of
this
section
that
contains
water
qualitybased
effluent
limitations
based
on
water
quality
criteria
set
forth
in
paragraph
(
c)
of
this
section,

the
permittee
shall
comply
with
such
water
quality­
based
effluent
limitations
upon
the
commencement
of
the
discharge.

(
3)
Where
an
existing
pathogen
discharger
reasonably
believes
that
it
will
be
infeasible
to
comply
immediately
with
a
new
or
more
restrictive
water
quality­
based
effluent
limitations
based
on
the
water
quality
criteria
set
forth
in
this
section,
the
discharger
may
request
approval
from
the
permit
issuing
authority
for
a
schedule
of
compliance.

(
4)
A
compliance
schedule
for
an
existing
pathogen
discharger
shall
require
compliance
with
water
quality­
based
effluent
limitations
based
on
water
quality
criteria
set
forth
in
paragraph
(
b)
of
this
section
as
soon
as
possible,
taking
into
account
the
dischargers'
ability
to
achieve
compliance
with
such
water
quality­
based
effluent
limitations.

(
5)
If
the
schedule
of
compliance
for
an
existing
pathogen
discharger
exceeds
one
year
from
the
date
of
permit
issuance,
reissuance
or
modification,
the
schedule
shall
set
forth
interim
Deliberative
product:
Do
not
distribute
or
quote
July
8,
2004
(
1:
21PM)
86
requirements
and
dates
for
their
achievement.
The
period
between
dates
of
completion
for
each
requirement
may
not
exceed
one
year.
If
the
time
necessary
for
completion
of
any
requirement
is
more
than
one
year
and
the
requirement
is
not
readily
divisible
into
stages
for
completion,
the
permit
shall
require,
at
a
minimum,
specified
dates
for
annual
submission
of
progress
reports
on
the
status
of
interim
requirements.

(
6)
In
no
event
shall
the
permit
issuing
authority
approve
a
schedule
of
compliance
for
an
existing
pathogen
discharge
which
exceeds
five
years
from
the
date
of
permit
issuance,
reissuance,
or
modification,
whichever
is
sooner.
Where
shorter
schedules
of
compliance
are
prescribed
or
schedules
of
compliance
are
prohibited
by
law,
those
provisions
shall
govern.

(
7)
If
a
schedule
of
compliance
exceeds
the
term
of
a
permit,
interim
permit
limits
effective
during
the
permit
shall
be
included
in
the
permit
and
addressed
in
the
permit's
fact
sheet
or
statement
of
basis.
The
administrative
record
for
the
permit
shall
reflect
final
permit
limits
and
final
compliance
dates.
Final
compliance
dates
for
final
permit
limits,
which
do
not
occur
during
the
term
of
the
permit,
must
occur
within
five
years
from
the
date
of
issuance,
reissuance
or
modification
of
the
permit
which
initiates
the
compliance
schedule.
Where
shorter
schedules
of
compliance
are
prescribed
or
schedules
of
compliance
are
prohibited
by
law,
those
provisions
shall
govern.
