Reg. 37

Water Quality Trading or Pollution Scheme? 



16 August 2019: NANTRAG will receive comments from the City of Fayetteville and Beaver Water District. 

6 August 2019: Fayetteville City Council will hear recommended changes proposed by the Water & Sewer Committee to improve Reg. 37. The Council will discuss and vote on proposed changes and improvements to Reg. 37 that the City of Fayetteville (NANTRAG member) will present to NANTRAG for consideration on Aug. 16th. 

30 July 2019: Fayetteville Water & Sewer Committee passed a resolution to bring before the full City Council regarding changes to Reg. 37 that would require: 

  1. The stated purpose that trades should result in improved water quality;

  2. "Watershed" be defined by a specific hydrologic unit code (HUC) level; and

  3. Areas of significant vulnerability and importance are exempt from trades.

9 July 2019: Fayetteville Water & Sewer Committee received updates regarding NANTRAG's Reg. 37 rulemaking process. White River Waterkeeper presented concerns and considerations that the Committee should keep in mind while considering changes during the 60-day pause. 

21 June 2019: NANTRAG voted to allow a 60-day pause so the City of Fayetteville and Beaver Water District could draft final recommendations before moving forward with the rulemaking process. 

How Does the Third-Party Rulemaking Process Work and Where are We Now?

We'll save the recap of how we got to where we are for another day. Here's where we are now and what's left -

  • Currently, NANTRAG and ADEQ are finalizing their Responses to Public Comments.

  • Once finalized, NANTRAG will file responses and the final draft of Reg. 37 with the Arkansas Legislature for Committee approvals.

  • The Public Health Committees and the Administrative Rules and Regulations Subcommittee will Review and send recommendations to the Arkansas Pollution Control & Ecology Commission (APC&EC). 

  • NANTRAG will file a motion for APC&EC to adopt Reg. 37. If approved, APC&EC will file regulation with the Secretary of State. 

  • Note: At this stage, EPA approval would be sought if necessary. The Clean Water Act does not authorize nutrient trading, therefore EPA approval is not necessary. 

Northwest Arkansas Nutrient Trading Regulatory Advisory Group (NANTRAG) Explained:  

Act 335 established the Arkansas Nutrient Water Quality Trading Advisory Panel (check out this AWRC piece for background information).

Governor Hutchinson appointed members onto the panel to avoid regulations that would ensure Northwest Arkansas isn't polluting and wreaking environmental and economic damage on the premier waterbody in Oklahoma - the Illinois River. NANTRAG was formed by the cities of Fayetteville, Rogers, Springdale, and Bentonville. For more information on why the background of Oklahoma vs. Arkansas and the Oklahoma Poultry lawsuits that have literally everything to do with why we're even discussing nutrient trading in Arkansas, check out Save the Illinois River


Fayetteville City Council | Water & Sewer Committee

9 July 2019

04:00 - Nutrient Trading update from Tim Nyander (Fayetteville Utilities Director)


 - Link to agenda

30 July 2019

Note: Special meeting focused on Nutrient Trading and proposed changes drafted by Councilwoman Teresa Turk. 

 - Link to agenda

1 May 2018

4 May 2018


If you live in Fayetteville, Rogers, Springdale, or Bentonville - contact your Mayor and City Council members to:

  1. Let them know that you don't want your tax dollars to contribute to the establishment of a vague, arbitrary regulation that has the potential to degrade water quality. Don't forget - the purpose of Reg. 37 does not include improving water quality. ​​​​Also remind them that unless there are numeric nutrient criteria to establish a baseline goal and means of evaluating success, moving forward with the rulemaking process is putting the cart before the horse. 

  2. Request formal notice of when Reg. 37 will be sent to the legislature. (Reminder: your elected officials work for you. If you aren't engaging, then the only ones they are hearing from on this issue are those that have something to gain by not being regulated (i.e., if NWA poultry companies don't have to reduce nutrient runoff, then Wal-Mart can still sell cheap meat from CAFOs). 

  3. Ask them how much money they have spent pursuing third-party rulemaking of Reg. 37 and how much money the city will save if nutrient trading is passed.  

  4. Ask them why they don't value open and transparent government - made obvious by the fact that NANTRAG meeting minutes, agendas, proposed meeting dates, etc., are not available online. 

And then let us know what they say!

Summary of Concerns


  1. Arkansas has not established appropriate water quality goals (total maximum daily loads, water quality based effluent limitations, numeric nutrient criteria, etc.) to create a market for trades.

  2. The Regulation as drafted lacks sufficient substance to ensure the trading is protective of water quality and will result in actual net improvement in water quality.

    1. Does not include an enforceable provision that the actual, instream nutrient concentrations and loads be reduced or that they even be maintained at current levels;

    2. Lacks sufficient implementation procedures;

    3. Lacks a defined process to evaluate non-point source nutrient credits and generators of those credits;

    4. The standards for the decision of the ADEQ Director to approve or disapprove a Nutrient Credit Generating Project do not adequately protect our water resources

    5. There is no required-minimum trade ratio and insufficient detail regarding how credits will be incorporated as offsets into NPDES permits;

    6. The Regulation is introducing an entirely new regulatory program and provides no consideration to the impact on ADEQ resources and staff and how those costs will be covered; and

    7. The Regulation limits ADEQ’s enforcement authority and only allows inspections by the Arkansas Natural Resources Commission. This is contrary to the delegation of the NPDES program to ADEQ by the U.S. EPA.