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Region 6 Guidance:
Recreation Standards and the CWA Section 101(a)(2)
"Swimmable" Goal

Map of EPA Region 6 Arkansas Louisiana New Mexico Oklahoma Texas
National Information
Acknowledgments
Introduction
Four Options
Recreation UAA's: Background Information
Recreation UAA's: The Region 6 Approach
Recreation UAA's: Summary
Definition of Primary Contact Recreation
Recommended Bacteriological Criteria
Recreation Use Attainment Analysis Worksheet (32 K pdf)



Acknowledgments

Region 6 gratefully acknowledges the assistance of Region 8, especially Dave Moon, in developing our regional guidance. It is Region 6's intent to be consistent with Region 8's 1992 recreation guidance and we have liberally used their document and ideas. The attachment concerning a checklist for swimming UAA's was developed by Region 8 and reproduced in this document with minor changes.

Introduction

CWA Section 101(a)(2) establishes as a national goal that,

This provision has come to be known as the "fishable/swimmable" goal of the CWA. Accordingly, where a State's or Tribe's water quality standards for a particular waterbody contain designated uses that do not include these goal uses, the State/Tribe is required by the federal water quality standards regulation at 40 CFR 131.10(j) to evaluate whether goal uses are attainable and to document the findings (i.e., with a use attainability analysis or UAA).

With regard to the swimmable component of this national goal, EPA recognizes that the physical characteristics (e.g., depth, flow) of some waterbodies do not lend themselves to swimming and other forms of primary contact recreation. However, the general Agency policy on this issue is to place emphasis on the potential uses of a waterbody and to do as much as possible to protect the health of the public (see 48 FR 51401 and the Water Quality Standards Handbook at p. 1-6). In certain instances, the public will use whatever waterbodies are available for recreation, regardless of the flow or other physical conditions. Accordingly, EPA encourages States/Tribes to designate primary contact recreation uses, or at least to require a level of water quality necessary to support primary contact recreation, for all waterbodies with the potential to support primary contact recreation.

This document summarizes the options available to States and Tribes to satisfy the regulatory requirements that have resulted from the swimmable goal and makes recommendations on several key issues related to recreation standards.

Four Options

Options available to the States/Tribes to achieve compliance with the requirements associated with the swimmable goal can be characterized as follows:

Option 1:

Option 2: Option 3: Option 4: EPA also recognizes that States and Tribes may set seasonal uses to more accurately characterize the primary contact recreation use during the swimming season while maintaining the secondary contact recreation requirements year round. Setting seasonal swimming uses allows States and Tribes to maximize monitoring efforts by concentrating more resources during the period of most risk.

Recreation UAA's: Background Information

The water quality standards regulation includes a total of six factors that may be the basis for concluding that a use is not attainable (see 40 CFR 131.10(g)). These factors are as follows:

1. Naturally occurring pollutant concentrations prevent the attainment of the use;

2. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met;

3. Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;

4. Dams, diversions, or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way that would result in the attainment of the use;

5. Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or

6. Controls more stringent than those required by Sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact.

As discussed in the Introduction, EPA's general policy is to encourage application of swimmable goal standards (i.e., following option 1, 2, or 3) even where, based on physical factors, incidental human exposure associated with water recreation seems unlikely. Region 6 believes that this approach continues to make sense for the majority of surface waters.

Some have questioned whether existing EPA regulations and policies provide States/Tribes with sufficient opportunity to ever conclude that swimmable goal standards are not attainable. For example, if physical factors are not to be considered, this seems to eliminate factors 2, 4, and 5 above. However, Region 6 has allowed factor 2 to be used whenever this lack of flow results in water depths of less than 18 inches. Arkansas in their ecoregion analysis found that waterbodies with watersheds of less than 10 sq. mi. also did not support a swimming use and the region has approved this approach too. Further, factor 1 does not seem relevant because bacteriological criteria drive most recreation use decisions and, although information is lacking, human sources of fecal contamination are generally considered as the primary source of human health risk. Factor 3 also does not seem relevant because most, if not all, human sources of fecal contamination can be remedied through current technological means. This leaves only the economics factor (number 6), which EPA believes is not broadly applicable because of the range of affordable disinfection options currently available. Situations involving failing septic systems or unmanned package plants are possible exceptions to this general conclusion.

Although assigning swimmable goal standards to all waters would clearly satisfy all requirements pertaining to recreation and fully protect human health, Region 6 recognizes that there may be some waterbodies where application of such standards may be unnecessary. For example, in situations where an evaluation of relevant factors indicates that existing and potential primary contact recreation uses cannot reasonably be presumed to exist, it may not be necessary or appropriate to set standards in support of the swimmable goal. In short, EPA believes there are opportunities, albeit under prescribed conditions, where it is appropriate to determine swimmable goals are not attainable. Accordingly, the following is intended to provide some general guidance to assist States/Tribes in establishing appropriate water quality standards for recreation. The Region is available and willing to work with interested States/Tribes to develop State or Tribal-specific procedures or policies.

Recreation UAA's: The Region 6 Approach

1. Maintain and Protect Existing Water Quality

A primary consideration in establishing recreational standards should be to maintain and protect existing high levels of water quality. In general, many waterbodies in Region 6 have sufficient water quality to support primary contact recreation uses. Where this is the case, the Region recommends that States set primary goal standards (i.e., designated use + bacterial criterion or the bacterial criterion alone) to ensure that water quality is maintained. The question of whether or not there is a potential for primary contact recreation need not be addressed specifically since the function of this approach is to protect an existing high level of water quality. This approach is particularly appropriate for waterbodies without human sources of fecal contaminants (i.e., point sources, septic systems, etc.).

A variety of factors support a presumptive application of swimmable goal standards. For example, the approach:

2. Protect Existing and Potential Uses

Where presumptive application of swimmable goal standards cannot be justified based on existing water quality, States/Tribes must determine whether primary contact recreation is an existing or potential use. The requirement to protect existing uses is addressed in two places in the current regulation - Section 131.10, designation of uses and Section 131.12. Existing uses are defined as "those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards." As a result, the focus of this broad use "category" is on the past or present condition of the water body. Furthermore, by establishing requirements prohibiting the removal of existing uses and ensuring those uses will be appropriately recognized in State and Tribal water quality standards, the current regulation ensures that the better of the past or present condition, at a minimum, will be maintained and protected.

The federal regulation establishes two requirements with respect to existing use protection: 1) a prohibition against removal of a designated use where that use is determined to be an existing use, and 2) a requirement that existing uses be protected by State or Tribal regulation. It is also important to remember that the existing use provisions in both Sections 131.10 and 131.12 must be considered together. These provisions apply concurrently and should not be considered in isolation. Together they constitute the existing use protection requirements, ensuring the existing uses and water quality to support those uses are maintained and protected.

EPA's position is that an existing use finding can be made either where the use is or has been "actually attained" or where the water quality necessary to support the use is in place even if the use, itself, is not currently established, as long as other factors would not prohibit the use. The "other factors" caution is important in understanding EPA's position on existing uses. In making an existing use determination, there is a link between the use and water quality. The use must have been actually attained in the past, is now attained or is attainable. Water quality, alone, is an insufficient basis for making an existing use finding if there are other factors that would prohibit establishment of the use regardless of the quality of the water at a site.

Obviously, any decision about whether or not a swimming use is an "existing use" must be a water body-specific determination. The existing use determination is, therefore, site-specific, and decisions must consider both water quality and other limiting factors such as the physical habitat specific to a particular water body. If a few people occasionally "swim" in a water body that does not have the chemical quality or physical characteristics to support swimming, is this an existing use, even if the water body is posted "no swimming" due to bacterial contamination and lacks the physical features to actually support swimming? The straightforward answer to this question is that "swimming" is not an existing use because the present (or past) condition does not support that use. This conclusion is based on the very limited actual "use" and, more importantly, the lack of suitable water quality or physical characteristics that would support a recreational swimming use now or in the future (as determined by the water quality requirements and recreational swimming considerations, including safety considerations, in the State or Tribal classification system for primary contact recreation). The primary contact recreation use would not be present even upon elimination of the bacterial contamination.

As noted above, however, existing use decisions are very site-specific, and it is possible that, on a specific water body under similar circumstances, a different conclusion could be reached by a State or Tribe based on public comment at a hearing and a decision to take a very protective approach to the incidental use for that specific resource. Satisfying EPA's guidance on the existing use threshold provides a State or Tribe with the option of limiting protection based on that finding, but it does not create an obligation to limit protection. The federal requirements do not prohibit a State or Tribe from taking a more protective approach than would be required by the water quality standards regulation.

Although, in the above example, a State or Tribe could conclude that primary contact recreation is not an existing use, nevertheless, it may be a potential use, to be designated in water quality standards, depending on whether the physical condition of the water body is suitable for swimming and whether or not the water quality problems limiting that use are controllable (See 40 CFR 131.10(j) and discussion on use attainability analysis below). The point is that, although the existing use provisions most directly address past or present conditions, decisions about existing uses generally are not made in isolation. With respect to uses contained in CWA Section 101(a)(2), the regulation links existing and designated uses, and it may be useful to view these provisions as a continuum in examining the broader question of use protection. It is a moot issue to determine if primary contact recreation is an existing use, whenever primary contact recreation is attainable (See 40 CFR 131.10 (d)).

Some States and Tribes have recognized that continuum in developing use attainability guidance for recreational uses which includes questions about the actual use, existing water quality, water quality potential, recreational facilities, location, safety considerations, physical conditions of the water body, and access (note: access here means restricted access, as in fenced property; access is not intended to suggest the "remoteness" of the water body; in EPA's view, remoteness alone is not a valid basis for an attainability decision on recreation but rather an indication that the waterbody has less potential for recreation than an urban river). When all of these factors are considered, the adopted water quality standards are consistent with both the existing and designated use provisions. For example, suppose a city has created a greenway along a stream that receives wastewater effluent upstream of the greenway. The greenway attracts children leading to the inevitable "unauthorized" swimming. If the physical condition of the stream is suitable for swimming, the swimming occurs on a frequent basis and the greenway provides recreational facilities and access, the only factor limiting the use may be a controllable water quality problem. The linkage between existing and designated uses encourages the evaluation of this full suite of factors in making a decision about whether or not primary contact recreation should be protected.

Existing use decisions may be made in two contexts- whether the use has taken place or whether the water quality was sufficient to support the use, or both. That is to say, existing use decisions can be based on a finding that the use, as defined in the classification system, and/or the water quality needed to support the use is in place (and there are no other factors that would prohibit actually attaining the use).

In most cases, recreation standards can probably be established without conducting a use attainability analysis. The Region believes that it makes sense to apply the primary contact recreation use broadly and, therefore, narrow the universe of waters where it will be necessary to conduct a UAA. However, where the need for a use attainability analysis arises (i.e., the existence of a potential incidental exposure route is uncertain or has been challenged), States/Tribes should develop and apply a UAA procedure. The questions to be answered in conducting a UAA are as follows:

A UAA procedure should allow the State/Tribe to make defensible decisions about recreation standards, with public involvement, and based on an overall assessment that addresses all relevant considerations. The difficult UAA issue is deciding where the potential for primary contact recreation (including incidental exposure) is sufficiently limited to justify not setting a swimmable goal standard for the water body. In the case of potential uses, the decision must be based on consideration of a variety of factors affecting potential (e.g., access, flow, depth). Although physical factors such as flow and depth may be considered in conducting such assessments, physical factors should not be the sole measure of attainability. In general, the Region's position is that physical factors must be evaluated in combination with other relevant considerations.

The factors that should be considered in conducting a UAA for recreation include the following:

Where a UAA is conducted, and swimmable goal standards are determined to be unattainable, such decisions would be subject to the same triennial review requirements that apply to all water quality standards decisions. That is, some level of review would be required every three years to assure that the basis for adopting a less than 101(a)(2) use remains valid. A UAA checklist is attached that includes in more detail the factors described above.

Recreation UAA's: Summary

The Region recommends that swimmable goal standards be presumptively applied, except perhaps where the existence of a potential recreation-based human exposure route is uncertain or has been challenged. Options 1, 2, or 3 (described above) may be followed to establish recreation standards that EPA considers "swimmable." This should allow States/Tribes to focus limited resources appropriately and fully protect the public against potential health risks associated with recreational activities. For segments where it is not reasonable to presumptively apply swimmable goal standards, States/Tribes should develop and document the procedures for conducting a recreation use attainability analysis or at a minimum use the attached worksheet. Although physical conditions such as flow and depth may be considered in evaluating potential recreation uses, the Region's position is that these factors are to be used in combination with other factors such as existing uses, waterbody access, bacterial water quality, waterbody location, treatment costs, and the existence of facilities that encourage, or create a potential for, full body contact recreation.

Definition of Primary Contact Recreation

EPA Region 6 recommends that States/Tribes define this term to include swimming and other activities that potentially involve total body immersion and/or incidental water exposure. Such activities include, but are not limited to, rafting, wind surfing, canoeing, tubing, kayaking, scuba diving, snorkeling, water-skiing and ceremonial uses. There are several factors supporting this position. First, one of the fundamental purposes of water quality standards is to protect human health. Clearly, limiting primary recreation uses to waterbodies where swimming occurs does not serve this purpose because there are other activities that pose appreciable risk of incidental exposure to pathogens. Second, there is no basis to conclude that Congress intended to limit the Section 101(a)(2) goal to waters where swimming occurs. The Act specifically uses the phrase "in or on the water" to describe recreational activities that are to be addressed. Based on these considerations, the Region strongly recommends that States/Tribes define primary contact recreation broadly, to include a full range of activities that may result in incidental exposure.

Recommended Bacteriological Criteria

EPA Region 6 recommends that States/Tribes switch to one of the two indicator organisms and associated criteria provided in EPA's 1986 bacteriological criteria guidance. The Region believes that the evidence clearly shows that either E. coli or enterococci are better indicators than fecal coliforms, based principally on their correlation with incidence of gastroenteritis in swimmers. Using the 1986 indicators also allows States and Tribes to further refine their primary contact recreation use into categories such as high use beach, medium use beach, and low use beach. Not to exceed criteria can be differentially set based upon the risk of exposure and statistical assumptions and utilized when making beach closing decisions. At a minimum, States and Tribes should begin collecting data on these alternative indicators to support future adoption into State or Tribal regulation.

Although, criteria recommendations for protecting the designated use of secondary contact recreation are not included in the 1986 guidance document, EPA Region 6 believes that numeric criteria are necessary for this use. Currently there are no studies that correlate secondary recreation activities such as wading and fishing to the risk of developing a gastro-intestinal illness. Therefore, the criterion needs to be selected as a policy decision. The old fecal coliform recommendation used an order of magnitude difference to differentiate between primary and secondary contact recreation. EPA Region 6 finds that recommendation to be appropriate for the new indicators of E. coli or enterococci and recommends that the criteria for secondary contact recreation be ten times greater than that for primary contact recreation.

The Region also recommends that, regardless of which indicator is selected, the criterion be applied with a rebuttable presumption that the indicator shows contamination of human origin (i.e., Option 3). The basis of this approach is that currently available information on the human health risk of non-human fecal contamination is insufficient as a basis for regulatory controls. Non-human sources of bacteria are not without risk as outbreaks of illness due to cryptosporidium, giardia, and other animal pathogens indicate. Accordingly, States/Tribes should focus on controlling human sources and treat bacterial criteria exceedences as indicators of potentially uncontrolled human sources. To address criteria exceedences, States/Tribes should establish and implement a routine sanitary survey or other appropriate procedure. Where such a survey or data identifies no significant human sources of contamination, the "human sources" presumption may be considered overcome and the criterion satisfied. Where the survey or other data identifies human sources that are not adequately controlled, the criteria may then be used as a basis for establishing controls. Where non-human sources of bacteria result in high levels of indicator bacteria, the Region recommends that States/Tribes assess impacts on aquatic life uses and drinking water uses where applicable. It is not uncommon for sources of non-human bacteria to indicate potential nutrient over enrichment and possible habitat degradation.

It should be noted that the presumption of no human health risk attributable to non-human fecal sources may be subject to further study in the future. If and when such research refutes or calls into question the basis for the above policy, EPA's recommended approach for non-human fecal sources may be revised. However, based on currently available data, Region 6 believes that the above recommendation provides a reasonable approach to establishing and implementing bacteriological water quality criteria.

Recreation Use Attainment Analysis Worksheet (pdf)

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