Fracking Waste Reuse Hype Defeated by Science and Citizen Action

In December 2023, from the global stage of COP28 in Dubai, Governor Michelle Lujan Grisham announced a headline-grabbing initiative: a $500 million Strategic Water Supply program that would purchase and bank treated brackish and “produced water” (oil and gas fracking wastewater) at many locations across New Mexico to support future industrial development. The announcement touted desalinated oilfield waste as a climate-resilient water source for high-tech manufacturing, hydrogen production, and energy storage industries.

Back home in New Mexico, however, the Governor’s uninformed vision collided with the scientific and legal realities of water quality protection. The New Mexico Environment Department (NMED), aligning with the Governor’s initiative, proposed a new water quality rule that would have opened the door for discharges of treated fracking waste into the environment, without establishing enforceable scientific standards or demonstrating treatment efficacy or safety.

Objectionable elements of NMED’s December 2023 proposed rule included:

• Produced water reuse for non-oil industry purposes without a permit in undefined and unconstrained Industrial Projects and Demonstration Projects.
• No criteria for treatment performance, reuse safety, and waste disposal.
• No location constraints except not publicly accessible.
• No requirement for any public notice or hearings
• No size limit
• No provisions for enforcement

In response, New Energy Economy (NEE) intervened as a party in the Water Quality Control Commission’s (WQCC) formal rulemaking.  The highly effective NEE Executive Director / Attorney Mariel Nanasi led the opposition, legally and strategically.  Disclosure:  The author served as an expert witness for NEE, presenting technical testimony (direct, rebuttal, and surrebuttal) during 11 days of hearings in May and August 2024.

The outcome: total victory for science, public health, and civic engagement

• Discharge of produced water—treated or untreated—is prohibited under the new rule.
• Industrial Projects and Demonstration Projects are gone.
• Pilot projects are strictly limited to no more than 2,000 barrels/day, which is equal to 0.08 million gallons per day, or 1/4 acre-foot per day.
• Pilot projects require individual permits and scientific protocols including full data reporting.
• The permit application process requires public notice and opportunities for formal public participation.
• The Water Quality Control Commission explicitly found that no reliable scientific data currently supports setting standards for the treatment, reuse, or discharge of produced water.
• The rule sunsets in 2030, allowing time for legitimate research—should it emerge—to inform future policy.
• The burden of characterizing the produced water and demonstrating the effectiveness of treatment is placed squarely on industry, not the public or regulators.

It became clear over the course of the public hearing, with all witness sworn to tell the truth, that Secretary Kenney was the source of illegal elements of the the Environment Department’s initially proposed rule. His office required the initial NMED draft rule to allow the Industrial Projects and Demonstration Projects without the permit from the NMED required by the 2019 Produced Water Act and the standards and regulations for off-oil field use required by 2019 amendments to the Water Quality Act.

Also newsworthy is a leadership change for the Produced Water Research Consortium (PWRC), which had functioned as promotional arm for fracking wastewater treatment and reuse as a solution to New Mexico water resources scarcity. Consortium Director Mike Hightower, the Consortium’s founding director and architect of the reuse narrative, participated. His sworn testimony was different from his public rhetoric.  Under oath, he admitted the Consortium has no reliable data on treatment in its empty database. He agreed 18 months would be needed to generate the data.  The Commission and parties took note of a formerly secret “NMSU external review committee” report by experts that was highly critical of the consortium’s lack of focus, management, and performance.

NMSU just announced to consortium members that Mr. Hightower is stepping down, replaced by Dr. Zach Stoll, a New Mexico State University civil engineering professor and national desalination expert.  Dr. Stoll’s told the consortium membership in December 2024 he estimated the cost of adequately treating produced water for reuse at $5 per barrel, or roughly $40,000 per acre-foot—a figure that makes any claimed economic feasibility highly dubious, particularly in comparison to existing water supplies or conservation alternatives.

The Commission’s ruling represents a landmark defeat of pseudoscience and political overreach. It reaffirms that water quality regulation must be grounded in sound science, not speculative economic development schemes.

This case provides an instructive example of how public interest legal and scientific advocacy, technical rigor, and sustained civic engagement can still triumph in the public interest over the oil and gas industry and political demands.  In the end, it was the sustained engagement by hundreds of concerned New Mexican that made the difference.