Until 2019, the 1935 Oil and Gas Act had not been changed. Our state has operated with legislation designed to encourage drilling and exploration using 1935 technology. Of course, technology and the scale of drilling has changed dramatically.
In 2019, we finally passed legislation that addresses new technologies and the enormous scale of drilling: the Produced Water Act. Unfortunately, the act is a giveaway to the oil and gas industry and does not adequately protect our land and water from the potential dangers of this toxic waste.
The act commodifies produced water, the misnomer used to refer to wastewater of the fracking process. Water use in our fragile, high desert and drought-vulnerable environment is governed by our Constitution. It is a natural resource that belongs to the people, not a commodity to be sold on the open market. Water must be put to “beneficial use”. The Produced Water Act gives oil and gas industry the option to sell produced water after it has been used in the fracking process. This violates our basic principle of water use and management for the benefit of the people. An oil and gas company can sell it to the highest bidder, which could be a user that does not use it to benefit the people of the state.
The act fails to protect our existing water supplies. It does not address the problem of depletion of aquifers and streams and impact on prior users. It did not provide sufficient resources for the Office of the State Engineer to enforce laws and regulations that would protect our precious water from unauthorized diversions and impairment of existing users’ rights. The statute did not give resources or direction to the State Engineer for planning to address how fracking affects water quantity in New Mexico.
The Produced Water Act does not specify any standard of potability to which the water must be returned before it is reused outside of drilling and exploration. That is left to potential agency regulation. To ensure this water does not contaminate our rivers, streams and aquifers, the statute should require that produced water satisfy federal drinking water standards before it can be reused. Studies show produced water is polluted not only by the toxic chemicals that are added to it to make it more effective, but also by natural radiation and pollutants. Produced water is likely to have higher concentrations of natural contaminants because of its contact with the shale formation. Levels of naturally occurring radioactive material vary widely. Each truckload of produced water should be tested to be sure that its concentrations are not at toxic levels.
Reputable studies continue to be done to address the many unknowns about produced water. It is crucial that the Oil Conservation Division, the Environmental Department and the Water Quality Control Commission use these studies to determine whether produced water should be recycled for any use involving humans, animals or agriculture. Further, these studies should guide the potential impact on our limited surface and groundwater. Unfortunately, the Produced Water Act does not require agencies to consider relevant and important scientific research.
Finally, the Produced Water Act does not require the careful documentation of the source of the produced water and its journey to its final destination so it can be traced in case of accidental or illegal disposal. Nor does it require that the transportation of this potentially toxic water be safe to protect against accidental release of the toxic fluid.
To protect our precious water, both in quantity and quality, and to protect our land from contaminants, we must do better. Laws, regulations and enforcement based on the best available science must guide us as we work to protect New Mexicans and our environment. Especially as we live with this pandemic and learn about how COVID-19 interacts with toxins that weaken our bodies, our future and our health depends on it.