Water Quality at the Lake of the Ozarks: The E. coli Issue

January 14, 2010

Steve Jeffery

Thompson Coburn LLPSt. Louis, Missouri(314) 552-6000

Discussion Items

• What is E. coli?• What is the health standard for E. coli?• 2009 Sampling at the Lake of the Ozarks• Did the 2009 sampling comply with the

standard?• What follow-up actions have taken place?

- There are hundreds of strains of E. coli, most of which are harmless to human health

- E. coli 0157 is a rare strain that produces toxins (“STECs”) that cause severe illness in humans

- To confirm a public health concern, it is necessary to identify whether E. coli 0157 is present

STEC live in the guts of ruminant animals, including cattle, goats, sheep, deer, and elk.

The major source for human illnesses is cattle.

Other kinds of animals, including pigs and birds, sometimes pick up STEC from the environment and may spread it.

What is the Health Standard

for E. coli ?

Source: http://www.dnr.mo.gov/pubs/pub2239.pdf

Source: http://www.epa.gov/waterscience/beaches/files/1986crit.pdf

Source: http://www.epa.gov/waterscience/beaches/files/1986crit.pdf

2009 Sampling at the Lake

Did the 2009 Sampling Comply with

EPA’s Ambient Water Quality Criteria?

DNR Sampling Dates

May 26June 22July 6August 17September 8October 5

EPA Ambient Water Quality Criteria (1986)

“Based on a statistically significant number of samples (generally not less than 5 samples spaced equally over a 30-day period)”

Was the Sampling Frequency Consistent?

E. coli is a bacteria found in the intestinal tract of warm-blooded animals, including humans. Most strains of E. coli are harmless, but some can cause gastrointestinal illness. Because the purpose of the testing is to provide baseline information for future comparison, rather than providing immediate public health data, the testing method used by the department does not differentiate between strains of the bacteria.

Lake of the Ozarks October sampling finds no elevated E. coli levels

Seasonal Totals Well Within State Standard

Volume 37-374 Contact: Travis Ford

(For immediate release) 573-751-1010

JEFFERSON CITY, MO, OCT. 9, 2009 -- This season's final set of water samples from the Lake of the Ozarks found none with E. coli levels in excess of the federal recommended maximum for swimming areas, and the overall testing results for the summer found E. coli levels for the lake at less than one-tenth the state standard for swimming, the Missouri Department of Natural Resources announced today. …

Was There Specific Testing for E. Coli 0157?

Governor’s Enforcement Initiative

September 23, 2009 News Release:

Gov. Nixon initiates massive, unprecedented water quality enforcement effort at Lake of the OzarksOSAGE BEACH, Mo. - Gov. Jay Nixon announced today a sweeping enforcement initiative aimed at improving water quality at the Lake of the Ozarks ….

Four Parts of the Governor’s Initiative:

1.Inspection sweep of 400 area facilities2.Implementation of a zero tolerance policy3.DNR to complete a baseline survey of water quality at the Lake4.DNR will use “most rigorous possible” standard of review for permits

“… A zero-tolerance standard for permit violations will be applied and violators found during the sweep will receive administrative penalties issued by the DNR Director Mark Templeton or referred to the office of the Attorney General for enforcement action….”

DNR Enforcement Actions at the Lake

• DNR inspections began on October 5th• 90 violations found to-date

Week of Inspections LOWs NOVs

Referred to Water

Program for Enforcement

Return to Compliance

Oct. 4-10 182 35 16 1

Oct. 11-17 135 30 14 1

Oct. 18-24 103 17 15 5 16

Oct. 25-31 9 7 11 8

Nov. 1-7 9 8 11

Nov. 8-14 3 5

Nov. 15-21 6 8 3 6

Total 420 106 68 35 35

Source: http://www.dnr.mo.gov/loz.htm

DNR Final Report on Lake of the Ozarks

Executive Summary

Governor’s Legislative Proposal to Improve Water Quality

Dec. 29, 2009 Press Release

• Clean Water Commission designates a water body as “distressed.”

• The Commission and DNR would be required to use heightened scrutiny in the permitting process in order to prevent new pollution.

• DNR ceases issuance of permits to applicants in the affected area. Exceptions could be granted by the Commission where it deems proper.

• DNR begins inspection and enforcement of any and all on-site waste water treatment facilities which are currently not required to have permits, such as septic systems, package plants and lagoons.

• DNR conducts investigations, including water quality monitoring, geologic reviews and facility inspections to determine how to improve water quality in the distressed body, and to determine if and when a body is no longer distressed.

Proposed Additional DNR Actions

Outstanding Issues

1. Is there really a health-related E. Coli problem if no effort has ever been made to specifically identify E. Coli 0157?

2. If the DNR Report did not indicate there was insufficient statutory authority, then why propose additional legislation?

3. Is funding available to support the additional DNR permitting and inspection activities?

Water Quality at the Lake of the Ozarks: The E. coli Issue

Questions?Stephen G. Jeffery

Thompson Coburn LLPsjeffery@thompsoncoburn.com

314.552.6229

Thompson Coburn LLPOne US Bank Plaza

St. Louis, Missouri 63101www.thompsoncoburn.com