UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON DC 20460

OCT 24 2000

OFFICE OF

WATER

WQSP 0003

Dear Colleague

The following are EPA’s recommendations on the use of fish and shellfish consumption

advisories and certain shellfish growing area classifications in determining attainment of water

quality standards and listing impaired waterbodies under section 303 d of the Clean Water Act

CWA EPA is issuing this guidance to promote consistency in the use of fish and shellfish tissue

data by States Territories authorized Tribes and EPA Regional Offices in such decision making

This guidance does not impose any legally binding requirements and may not apply to a particular

situation based on the circumstances EPA may also change this guidance in the future

EPA generally believes that fish and shellfish consumption advisories and certain shellfish

growing area classifications based on waterbody specific information demonstrate impairment of

CWA section 101 a “fishable” uses This applies to fish and shellfish consumption advisories

and certain shellfish area classifications for all pollutants that constitute potential risks to human

health regardless of the source of the pollutant

Background

Section 101 a2 of the CWA establishes as a national goal “water quality which provides for

the protection and propagation of fish shellfish and wildlife and recreation in and on the water

wherever attainable.” These are commonly referred to as the “fishable swimmable” goals of the

Act Section 303 c2A requires water quality standards to protect the public health and

welfare enhance the quality of water and serve the purposes of the Act Water quality standards

include the designated use or uses to be made of the water criteria necessary to protect those uses

and an antidegradation policy EPA's water quality standards regulations interpret and implement

these provisions by 1 requiring water quality standards that at a minimum provide for

fishable swimmable uses unless those uses have been shown to be unattainable and 2 requiring

adoption of water quality criteria that protect the designated uses Such criteria must be based on

sound scientific rationale must contain sufficient parameters to protect the designated use and

may be expressed in either narrative or numeric form Narrative criteria are descriptions of the

conditions necessary for a waterbody to attain its designated use while numeric criteria are values

expressed as levels concentrations toxicity units or other numbers deemed necessary to protect

designated uses

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EPA interprets “fishable” uses under section 101 a of the CWA to include at a minimum

designated uses providing for the protection of aquatic communities and human health related to

consumption of fish and shellfish In other words EPA views “fishable” to mean that not only can

fish and shellfish thrive in a waterbody but when caught can also be safely eaten by humans

This interpretation also satisfies the section 303 c2A requirement that water quality standards

protect public health Including human consumption of fish and shellfish in the definition of

section 101 a “fishable” uses is not new For example in the National Toxics Rule all waters

designated for even minimal aquatic life protection and therefore a potential fish and shellfish

consumption exposure route are protected for human health see 57 FR 60859 December 22

1992

Under section 303 d1 States Territories and authorized Tribes must identify waterbodies

that are not attaining applicable water quality standards and prioritize such waterbodies for TMDL

establishment For purposes of determining whether a waterbody is impaired and should be

included on section 303 d lists States Territories and authorized Tribes are required to consider

all existing and readily available data and information see 40 CFR 130.7 This should include

physical chemical and biological data including data on pathogens such as bacteria and

phytotoxins as well as fish and shellfish tissue concentration data where such data are existing

and readily available States Territories and authorized Tribes collect several types of monitoring

data to help determine if waterbodies are attaining or maintaining applicable water quality

standards If a State Territory or authorized Tribe does not consider particular existing and

readily available data and information in deciding which waterbodies are impaired and must be

placed on the section 303 d list they must provide an explanation to EPA of why they did not use

such data and information

Discussion

It has been suggested that consumption advisories for contaminated fish and shellfish tissue

and shellfish growing area classifications should not be used in determining attainment of water

quality standards because 1 a scientifically defensible method for determining the attainment of

standards already exists through numeric ambient water quality criteria and 2 the CWA does not

explicitly direct the use of fish and shellfish consumption advisories or shellfish growing area

classifications in determining attainment of water quality standards

While numeric human health criteria for ambient water column concentrations of pollutants

are a basis for determining impairmentthe attainment of such criteria does not always mean that

designated uses are being protected Waterbody specific factors sometimes cause pollutants

including pathogens to accumulate in fish and shellfish tissue at higher levels than predicted by

the methodology used to derive the numeric human health criteria Examples of such factors

include water temperature nutrient levels food web structure the concentration of dissolved

organic carbon in the ambient water and accumulations in the sediment Hence a waterbody can

be meeting numeric ambient water quality criteria but not attaining the designated uses because

fish or shellfish tissue concentrations exceed levels that are protective of human health In

instances where tissue concentrations indicate an impairment of the designated use even though

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ambient water column concentrations of pollutants do not indicate an exceedance EPA

recommends States Territories and authorized Tribes translate the applicable narrative criteria on

a sitespecific basis or adopt site specific numeric criteria to account for higher than expected

exposures from contaminated fish or shellfish tissue and protect designated uses

Certain shellfish growing area classifications should be used as part of determinations of

attainment of water quality standards and listing of impaired waterbodies Shellfish growing area

classifications are developed by the National Shellfish Sanitation Program NSSP using water

column and tissue data where available and information from sanitary surveys of the

contributing watershed to protect public health The States review these NSSP classifications

every three years There are certain NSSP classifications that are not appropriate to consider and

certain data and information that should not be considered independently of the classification

unless the data and information were not used in the development or review of the classification

These instances are “Prohibited” classifications set as a precautionary measure due to the

proximity of wastewater treatment discharges or absence of a required sanitary survey shellfish

tissue pathogen data which can fluctuate based on shortterm conditions not representative of

general water quality or shortterm actions to place growing areas in the closed status

When deciding whether to identify a water as impaired States Territories and authorized

Tribes need to determine whether there are impairments of designated uses and narrative criteria

as well as the numeric criteria Although the CWA does not explicitly direct the use of fish and

shellfish consumption advisories or NSSP classifications to determine attainment of water quality

standards States Territories and authorized Tribes are required to consider all existing and

readily available data and information to identify impaired waterbodies on their section 303 d

lists For purposes of determining whether a waterbody is impaired and should be included on a

section 303 d list EPA considers a fish or shellfish consumption advisory a NSSP classification

and the supporting data to be existing and readily available data and information that demonstrates

non attainment of a section 101 a “fishable” use when

1 the advisory is based on fish and shellfish tissue data

2 a lower than “Approved” NSSP classification is based on water column and shellfish

tissue data and this is not a precautionary “Prohibited” classification or the state water

quality standard does not identify lower than “Approved” as attainment of the standard

3 the data are collected from the specific waterbody in question and

4 the risk assessment parameters eg toxicity risk level exposure duration and

consumption rate of the advisory or classification are cumulatively equal to or less

protective than those in the State Territory or authorized Tribal water quality

standards

This applies to all pollutants that constitute potential risks to human health regardless of the

source of the pollutant See attached flow charts 1 and 2

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However for fishshellfish advisories for “dioxin and dioxinlike compounds” 1 due to unique

risk characterization issues listing decisions should be made on a case bycase basis EPA is

currently evaluating the role of fish advisories as part of its overall strategy to reduce human

exposure to dioxin and dioxinlike compounds EPA will be developing additional guidance

specific to dioxin and dioxinlike compounds in the near future In the meantime EPA Regional

offices should work closely with EPA’s Office of Water when providing guidance to States

Territories and authorized Tribes on issuing fishshellfish advisories for or listing waters for

303 d purposes for dioxin and dioxinlike compounds

EPA acknowledges that in some cases fish and shellfish consumption advisories may not

demonstrate that a section 101 a “fishable” use is not being attained in an individual waterbody

For example a State may have issued a statewide or regional warning regarding fish tissue

contaminated with a bioaccumulative pollutant based on data from a subset of waterbodies A

State may use a higher fish consumption value in determining the need for an advisory compared

to the value used in establishing water quality criteria for the protection of human health As noted

above a State may also classify shellfish growing areas “Prohibited” as a precautionary measure

due to the proximity of wastewater treatment discharges or where a required sanitary survey has

not been conducted In such instances or where waterbodies have a fish or shellfish consumption

advisory waterbodyspecific they need not be listed as impaired under section 303 d unless there are nonprecautionary data and the data were not considered during the development or review of a

NSSP classification showing non attainment of section 101 a uses

Where States Territories or authorized Tribes do not include a waterbody on the section

303 d list because the advisory or the NSSP classification may not demonstrate impairmentEPA

recommends that the waterbody be listed as threatened under section 305 b Examples of such

situations include a statewide fish or shellfish consumption advisory the use of risk parameters in

a fish or shellfish consumption advisory program or the NSSP classification which are more

protective than those used in the water quality standards or where a shellfish growing area is

classified as lower than Approved and this is not a precautionary “Prohibited” classification or the

state water quality standard does not identify lower than “Approved” as attainment of the

standard

Some fish and shellfish consumption advisories and NSSP classifications are based on Food

and Drug Administration FDA action levels as opposed to EPA’s riskbased methodology for the

protection of human health FDA action levels are established to protect consumers of interstate

shipped commercially marketed fish and shellfish rather than fish and shellfish caught and

consumed within the state FDA action levels also include non risk based factors eg economic

impacts in their derivation while water quality criteria must protect the designated uses without

regard to economic impacts EPA has therefore concluded that FDA action levels do not provide a

greater level of protection for consumers of fish and shellfish caught and consumed within the

state than do human health criteria

1

Van den Berg et al 1998 Toxic Equivalency Factors TEFs for PCBs PCDDs PCDFs for Humans

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and Wildlife Environ Health Perspect 106 12775 792

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Because tissue contamination that triggers an advisory based on FDA action levels would also

trigger an advisory based on human health criteria EPA believes that a fish or shellfish

consumption advisory based on FDA action levels also indicates section 101 a “fishable” uses are

not attained

Conclusions

Under the CWA States Territories and authorized Tribes are required to adopt water quality

standards that protect public health EPA considers fish and shellfish tissue pollutant

concentrations a scientifically defensible basis for determining attainment of water quality

standards Therefore fish and shellfish consumption advisories and NSSP classifications as

described above should be used as a source of data and information for section 303 d

determinations

EPA recommends that a State Territory or authorized Tribe include on its section 303 d list

at a minimum waters where a fish or shellfish consumption advisory or NSSP classification

demonstrates non attainment of water quality standards ie the advisory or classification is based

on tissue data the data are from the specific waterbody in question and the risk assessment

parameters of the advisory or classification are cumulatively equal to or less protective than those

in the water quality standards When listing waters for 303 d or 305 b based on a fish advisory

common migratory waters of the monitored species should also be listed In addition EPA

believes it is reasonable for a State Territory or authorized Tribe to include any other water

having nonprecautionary a fish or shellfish consumption advisory or NSSP lower thanApproved

classification as impaired on its section 303 d list if the State Territory or

authorized Tribe believes it is appropriate

If you have any questions or concerns regarding this guidance please contact either of us or

have your staff contact Elizabeth Southerland Director Standards and Applied Science Division

at 202 260 3966 or Elizabeth Fellows Director Assessment and Watershed Division at 202 260

7082

Sincerely

Signed by Geoffrey H Grubbs October 24 2000 Signed by Robert H Wayland October 20 2000

Geoffrey H Grubbs Director Robert H Wayland III Director

Office of Science and Technology Office of Wetlands Oceans and Watersheds

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Attachments

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