State regulators to consider ‘produced water’ reuse rule next week

One week ahead of hearings that could lead to new state regulation on the reuse of treated toxic wastewater from oil and gas operations, environmental and frontline groups are gathering in opposition.

The New Mexico Environment Department’s Water Protection Division wants to set regulations on new ways water is reused after it mixes with waste. The state says this would help prevent that potentially harmful water from getting into the water trails that lead to humans, animals and their environments.

The state said its request to the Water Quality Control Commission could settle issues between the federal government, and that the proposed rule explicitly prohibits “any discharge of untreated produced water to groundwater or surface waters” in New Mexico.

Environment Department Deputy Secretary Sydney Lienemann said the federal government could allow a discharge permit right now because they have primacy over surface water discharge of treated or untreated produced water and that this new rule puts that power back with local officials.

“This rule closes that loophole so the New Mexico Environment Department and the (Water Quality Control Commission) will be the ones to decide when and if treated produced water can be discharged,” Lienemann said. “We see that loophole from the federal government as a huge potential problem.”

Opponents of the state’s proposal held a rally outside the New Mexico Legislature on Monday, and argued produced water poses a threat to New Mexicans’ health and safety.

Reyes DeVore (Jemez), a mother and program director for Pueblo Action Alliance, said there are no known technologies capable of treating the water to be completely free of toxic contaminants.

“This puts community health at further risk,” DeVore said.

Mario Atencio is a plaintiff in a lawsuit accusing the state of failing to enforce pollution laws, allowing more oil and gas production, and failing to limit pollution discriminated against Indigenous people, youth and frontline communities.

Atencio said the proposed rule is “an example of institutional environmental racism.”

“No one has informed the people on the ground, the Diné people,” Atencio said. “That’s in violation of the United Nations Declaration on the Rights of Indigenous Peoples.”

Norm Gaume is a retired engineer and expert witness hired by New Energy Economy, which is asking the Commission to reject the rule.

“This nasty stuff is very toxic, very poisonous, radioactive waste,” Gaume said. “It’s not water. It’s waste. And it’s offensive to me that the New Mexico Environment Department would propose a rule to deal with this crap, and call it the ‘water reuse rule.’ It ain’t water, folks.”

Discharge permit required

Lienemann disagreed with that assessment and said the rule would expressly prohibit the discharge of any treated or untreated produced water.

“That means not a drop of this water touches the ground in New Mexico,” Lienemann said. “This rule makes sure that we have the authority to be able to say, ‘Zero discharge.’”

It would require someone to have a discharge permit issued by the New Mexico Environment Department before allowing water to get into groundwater or surface waters.

If the state determines there will be no discharge to groundwater or surface water, the rule would authorize the agency to begin small scale projects that involve the controversial produced water.

Under the rule, environment officials could authorize studies for reusing the wastewater so long as there are no connections between the water being studied and a community’s drinking water.

Water Protection Division Director John Rhoderick said the research would be “to see, if at any point, the science says that there is a safe and acceptable way to utilize it for irrigating golf courses, or whatever the case.”

“We need the science, we can’t get the science without the experimentation,” he said.

“These pilots are extensive enough that they’re not going to get stood up without us knowing about it, and without us authorizing it,” Rhoderick said. “If one is in operation that we have not approved, then we will exercise our regulatory authority to shut that down.”

He said he believes the environment department will have enough inspectors with the scientific knowledge to regulate experimental facilities. He said his division is adding enforcement staff “to look at our existing workload, plus these test projects.”

Before someone can build a demonstration project or industrial application involving treated produced water, the rule would require them to first submit a notice of intent.

Mariel Nanasi, an attorney and executive director of New Energy Economy, said the rule proposal needs more work.

“This rule is not ready for primetime,” Nanasi said. “It does not rely on credible scientific data or the best available scientific information as the law requires.”

Jodi McGinnis Porter, a spokesperson for Gov. Michelle Lujan Grisham, said Monday the governor’s office “supports science-based water reuse and our record in fighting for clean water speaks for itself.”

Alejandria Lyons, with the NM No False Solutions Coalition, said their group got involved in the rulemaking because “produced water” is really toxic fracking waste which would be used in agriculture and replenishing the aquifer.

“We are completely against using dirty oil and gas for anything, and to open the door to any pilot projects,” Lyons said.

McGinnis Porter said the governor’s office has not met with the coalition about the proposed rule.