A Produced Water Reuse VICTORY, but critical changes still needed to protect our groundwater!

The New Mexico Water Quality Control Commission (WQCC) ended deliberations on proposed wastewater reuse rules (WQCC 23-84) to govern the treatment and reuse of oil and gas liquid waste.

The Commissioners listened to the expert testimony during the hearing last year detailing the toxicity and risks of treatment and discharge of “produced water” – the toxic byproduct of oil and gas extraction – and opted to limit authorization for treatment and reuse of produced water to “pilot projects” that process less than 2,000 gallons per day. Thanks to your advocacy and the legal interventions you supported - authorization for reuse in larger “demonstration” and “industrial” projects was rejected, with the caveat that the Commission voted to have the Rule sunset after five years.

However, the Commissioners’ decision to allow pilot projects to obtain permits to discharge treated waste to groundwater, is a dangerous one. The Commission's decision ignores the lack of scientific evidence supporting the safety or efficacy of treatment and NMED’s own recommendations to strictly prohibit discharge. 

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Standards specific to produced water treatment and quality have not yet been developed because effective treatment has not yet been proven at scale, and the contents of produced water have not yet been fully characterized. This puts NMED in the position of authorizing or denying discharge permits without any specific standards to determine efficacy of treatment or safety of the treated waste being produced. A mistake could mean catastrophic contamination of aquifers and land impacted by this authorized discharge.

The Commission also decided to ignore the straightforward language of the Produced Water Act (70-13-4 D NMSA), which requires that:

"For uses regulated by the water quality control commission pursuant to the Water Quality Act, a person shall obtain a permit from the department of environment before using the produced water, the recycled or treated water or treated product or any byproduct of the produced water." (Emphasis added)

Instead, a flimsy, illegal, and inadequate “Produced Water Notice of Intent” procedure was outlined for any pilot projects authorized, including so called “closed loop” projects. The Notice of Intent process outlined includes notification to adjacent property owners, but provides no recourse for those property owners to formally object or request a hearing on any proposed project that doesn’t anticipate discharge. During hearings last fall, however, NMED experts testified that so called “closed loop” projects are “not necessarily no discharge.” (WQCC 23-84, 5/16/24, Fullam, at 77.) The Commission’s decision on this issue is contrary to the legislature’s intent and the letter of the law. 

Further, the Notice of Intent procedure does not include any provision authorizing NMED to deny a proposal so long as an applicant includes all required information.

At last fall’s hearings, New Mexico Oil and Gas Association expert witness Mr. Rick McCurdy, the Vice President of Innovation and Sustainability for Select Water Solutions, revealed that regulators in Texas have adopted a permit process for produced water reuse projects that is significantly more protective than the rule Commissioners are planning to adopt. Texas regulations include public notice, limitations on size, detailed requirements for testing of fluids and soil before and after treatment, characterization of naturally occurring radioactivity, worker protections, financial assurances, and – importantly – authority to reject or modify a permit application to protect public health and the environment. New Mexicans deserve at least the same regulatory protections as Texans.

Community advocates, water protectors and environmental groups are calling for a rule that includes the necessary safeguards afforded by a legally required permit process, based on scientific treatment standards, and a clear answer on the issue of jurisdiction and disposal of the hazardous waste generated during treatment processes – an issue that was glossed over and left unanswered during deliberations.

Since the passage of the 2019 Produced Water Act, the oil and gas industry has been hellbent on offloading its waste onto New Mexicans. As the traditional injection well disposal method causes earthquakes and rapidly fill disposal capacity, the industry is desperate to find new ways to dump its hazardous byproduct. It was made clear during the WQCC’s deliberations that the intent is to gradually expand upon the adopted rule, as soon as can be justified, to allow for industry to do just that — at the expense of public health, clean water, and accountability. 

The Commissioners will review all of their proposed decisions and changes prior to their next meeting in May, where a final vote to adopt the rule will be taken.