Proposed water rules enough to make you sick

Commentary

When Congress approved the Beach Act in 2000, I was hopeful. The law required the Environmental Protection Agency to develop federal standards for water quality that would protect beach users from pathogen-caused illnesses, and it called for modernizing an outdated approach to measuring beach water quality. I believed it had the potential to make beaches far safer for the nation's swimmers and surfers.

But since the act was passed, little has changed. Although the EPA did set aside some funding (about $10 million annually) for beach water monitoring programs, the agency dragged its feet on developing standards.

It was only after the Natural Resources Defense Council sued the EPA (I served as an unpaid expert witness in that suit) that the agency agreed, in a consent decree, to complete epidemiological studies and to develop and analyze new, rapid methods for detecting fecal bacteria in recreational waters. The agency also agreed to set new beach water quality standards by the end of 2012.

Setting those standards presents a huge opportunity. But I fear it's about to be wasted. In late December, the EPA released its draft standards, and they were not only a disappointment, they were weaker than the 1986 standards they will replace.

Rather than providing strong guidelines that are consistent for all of the nation's waters, the EPA has decided to allow states to set their own beach-specific criteria. Past experience with this approach suggests it's highly unlikely that much will improve.

When left to their own devices, states and local agencies rarely institute stronger protection of public health than they are required to. Historically, allowing site-specific standards has led to weaker rules that wind up putting public health at greater risk. The EPA's flexible approach is almost certain to result in a patchwork quilt of standards, with inconsistent protection for ocean users from state to state and county to county.

The irony is that this comes at a time when we finally have good methods for quickly analyzing beach water, and thus the ability to protect beachgoers as never before. Samples can be collected and analyzed in just a few hours, which means that beaches can often be closed in time to prevent illness in swimmers. But under the new federal draft criteria, there is no requirement to use these methods, even for the most contaminated and heavily used beaches. Instead, monitors can rely on older methods that take as long as 24 hours to return results.

The EPA has no regulatory authority over when beaches are closed and swimmers warned. But it does have the power to order states to clean up consistently problematic waters, and the new regulations are weak in that regard too. The agency could require states to take action against polluters based on a single bad test. Instead, it requires action only if the average of a whole season exceeds limits, or if more than 25 percent of the samples taken during a 90-day period contain bacteria over acceptable limits. In other words, dischargers could be given a free pass to pollute beaches to unsafe levels on one out of every four days without any deterrent.

By comparison, California considers a beach highly polluted when it exceeds state standards 10 percent of the time, and provides for enforcement 100 percent of the time. The EPA's approach won't require California, for example, to water down its law, but the result of the EPA approach would mean that beaches near creeks, rivers, storm drains and sewage outfalls in other states should have "Swim at Your Own Risk" signs.

The updated criteria are based on what the EPA has determined is an acceptable risk of illness. Under the proposal, it would be OK if one in 28 swimmers came down with gastroenteritis from swimming at a beach. But does the public really believe it's OK if 3.6 percent of swimmers at a beach are regularly sickened because of contamination?

Adding insult to possible injury, the EPA proposal doesn't even consider the risk of such things as rashes or sinus infections in its calculations of acceptable risk.

A lot has changed in beach water quality science since the 1980s, when the current standards were set. Numerous high-quality epidemiological studies have been conducted around the world, including in Santa Monica Bay. But they were inexplicably not used to help develop the new beach criteria.

The EPA's proposal is out right now for public comment, so there's still an opportunity to strengthen these exceedingly weak standards. But officials are likely to stick to their proposal unless the scientific community and the public express their concerns.

A day at the beach should never make anyone sick.