## UNITED 

## STATES ENVIRONMENTAL PROTECTION 

# AGENCY WASHINGTON 

# DC 20460 

## OCT 24 2000
OFFICE

### OF WATER 

## WQSP0003 

### 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 

### imposeany 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 ofthe

# 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

# c

# 2A 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 

## maybe expressed in either narrative or

### numeric 

## form Narrative criteria are descriptions of the conditions necessary fora

### waterbody to attain its designated 

## use while 

### numeric criteria are values expressed as levels concentrations toxicity units orother 

### numbers 

## deemed necessary to protect designated 

### uses

### 2 

## EPA interprets 

### “fishable” uses under section 

## 101

# a of the

# CWA to 

### include at a

## minimum designated uses providing forthe 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 

### awaterbody but

## when caught can also 

### be safely eaten 

### by

## humans This interpretation also satisfies the section 

## 303

# c

# 2A 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 minimalaquatic life protection 

### and therefore a potential fish 

### and shellfish 

### consumption exposure 

### route are protected for

## human health see 

### 57 

## FR60859 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 forcontaminated 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 fordetermining 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 fordetermining 

### 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 

### methodologyused 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

### 3 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 oradopt 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 proximityof

### 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 

## nonattainment 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 orthe 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 

# e

# g 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

### 4 

## 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 fordioxin 

### 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 

## mayhave 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 forthe protection of

## human health 

## As noted 

## above a State 

## may also classify shellfish 

### growing areas 

### “Prohibited” as a precautionary 

### measure due to the proximityof

### 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 they 

### need not 

### be listed as impaired 

### under section 

## 303

# d unless there are 

# waterbodyspecific data 

### and the data 

### were not considered during the 

### development or review of a 

# nonprecautionary NSSP classification 

### showing 

## nonattainment 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 orthe 

## NSSP classification 

## may not demonstrate 

### impairment

## EPA 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 orthe 

## 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 orthe 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 risk

### based methodology forthe 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 

# e

# g 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

## PCBsPCDDs PCDFs for

## Humans

### 5 and Wildlife 

### Environ Health Perspect 

## 106

# 12775 792

### 6 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 basisfordetermining 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 forsection 

## 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 

## nonattainment of

### water quality standards 

## i

# e 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 fora 

### State Territory or authorized Tribe to include 

### any other 

### water having 

### a fish or shellfish 

### consumption advisory or

## NSSP lower thanApproved 

# nonprecautionary

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 2603966 or Elizabeth 

### Fellows Director

### Assessment and Watershed Division at

## 202 260 7082

Sincerely

Signed by Geoffrey

# H Grubbs October 

## 24 2000 Signed by Robert

# HWayland October

## 20 2000 Geoffrey

# H Grubbs Director 

### Robert

# H Wayland III Director Office of Science 

### and Technology Office of

### Wetlands Oceans and Watersheds

### 7 Attachments

### 8

### 9