Today we filed a Motion inviting the WQCC to reject industry's illegal and undemocratic attempt to relitigate fracking waste discharge

Yesterday, New Energy Economy, the Center for Biological Diversity, and Navajo leaders Daniel Tso and Mario Atencio filed a motion demanding that the Water Quality Control Commission (WQCC) summarily dismiss the latest petition from the newly formed Water Access Treatment and Reuse (WATR) Alliance. The motion argues that the WATR Alliance is merely a front for the New Mexico Oil and Gas Association (NMOGA) and the New Mexico Produced Water Research Consortium (NMPWRC), whose identical arguments were already fully and fairly litigated before the Commission last year in the WQCC 23-84 rulemaking.

On July 8, 2025 the WQCC voted to allow the petition from the WATR Alliance to amend the rule to move forward before the ink on the rule prohibiting discharge of fracking waste even had time to dry. We are inviting the Commission to reconsider their illegal and undemocratic decision.

Even though Secretary James Kenney of the New Mexico Environment Department (NMED), who only began sitting as a member on the Commission after this WATR petition was filed, expressed support for the petition, his position runs diametrically opposed to the expert testimony of NMED scientists in the 23-84 rulemaking, who concluded that discharge of treated produced water to New Mexico water resources threatens human health and the environment. Indeed, contrary to decades’ long practice, NMED staff did not appear before the Commission to represent the agency’s position and have not entered an appearance in the proceeding. While Secretary Kenney and the Governor have allied themselves with the oil and gas industry and have been vigorous proponents for the reuse of produced water, the WQCC relied on the expert testimony of NMOGA, the NM Produced Water Research Consortium, five NMED scientists and the best available peer reviewed science to determine that discharge and reuse of treated produced water is not yet safe for human health and the environment.

The law and science are clear. The WQCC already found there is no scientific basis for discharging or reusing toxic radioactive produced water in New Mexico. Repackaging NMOGA’s failed case under a new name does not change the facts or the law. The disconnect between the Governor and Secretary Kenney and agency experts charged with protecting public health and the environment is clear, and mirrors what’s going on at the federal level. We worry that NMED scientists are being sidelined and silenced in the face of political pressure from above.

In May, the WQCC adopted strict rules prohibiting discharge or reuse of treated produced water and allowed for permitted pilot projects operated under rigorous scientific protocols only. The oil and gas industry immediately appealed that decision. Now, the WATR Alliance seeks to nullify the final rule through a second bite at the apple, even as that appeal is pending.

Our motion argues that relitigating the same issues wastes public resources, undermines the integrity of regulatory decisions, and violates fundamental legal doctrines barring relitigation of settled matters. The WATR Alliance is directed by oil and gas attorneys and board members from Chevron, Occidental, and ConocoPhillips – all NMOGA members that participated in the prior case. The majority of the members of the WATR Alliance are either identical or in privity with NMOGA and the NMPWRC, or sat on the sidelines when they had a full and fair opportunity to participate in the rulemaking and chose not to.

The below map illustrates all the connections between WATR Alliance management and board members and parties that participated in or in privity to the intervenors in the 23-84 rulemaking.

If the WQCC refuses to reject the petition, or at least stay a hearing pending NMOGA’s appeal, we plan to seek emergency relief from the Supreme Court in an extraordinary writ to halt this industry gamesmanship.

The Oil and Gas industry's use of their significant financial and legal resource advantage to exhaust and overwhelm individuals and advocates who participated in the regulatory process in good faith is both undemocratic and illegal. Our motion emphasizes that public opposition to produced water discharge has been overwhelming, with over 100 people testifying against it and dozens of legislators expressing concerns about its safety and legality. And intervenors spent over 18 months gathering the scientific record to protect New Mexico’s water from toxic fracking waste.

This backdoor petition is a cynical abuse of the legal process and the public must not stand for it. We invite you to take action, once more, to write to the Commission and demand that they reject this industry front group's petition outright.