The administration of New Mexico Gov. Michelle Lujan Grisham appears to have pressured members of the state Water Quality Control Commission to consider a petition reversing a rule the commission passed unanimously in May that banned fossil fuel wastewater from being used outside oilfield work and testing.
The commission’s August meeting marked the first time in years that all four department secretaries on the panel had shown up at the same time, raising eyebrows. Those secretaries then led the push to support a new petition that would overturn a rule whose development entailed more than a year of hearings and scientific debate.
This story was produced in partnership with Capital & Main.
In a statement to SourceNM, Gov. Michelle Lujan Grisham said she “encouraged relevant cabinet secretaries to bring their expertise” to the proceedings. In an interview with Capital & Main and New Mexico PBS, James Kenney, the Environment Department secretary and a Water Quality Control Commissioner, said, “The governor did not explicitly ask us to all show up.” And recent reporting by the Santa Fe New Mexican reveals emails between the Governor’s Office, Kenney and other commissioners where they discussed pushing rules allowing wider use of oilfield wastewater “over the finish line.”
When reached by phone at a bluegrass festival in Winfield, Kansas, on Wednesday, Water Quality Control Commission Chair Bruce Thomson said he was unaware of the email exchanges with commissioners.
Thomson said he had not received any emails from the governor’s office and offered no comment when asked if he had concerns about the commission’s process.
Many who supported the original rule are livid with the apparent meddling, explicit or not. “They’re putting politics over scientifically based policy, and that’s illegal,” said Mariel Nanasi, executive director of the environmental group New Energy Economy. State statute requires commissioners to recuse themselves if their impartiality or fairness “may be reasonably questioned.”
In a statement, Jodi McGinnis Porter, a spokesperson for Lujan Grisham’s office, said, “The administration’s position on water reuse has been public for months. Directing secretaries to attend required meetings rather than send staff does not violate any laws.”
“This is the oddest, most political rule making I’ve seen in 25 years,” said Tannis Fox, senior attorney at the Western Environmental Law Center. For nearly three decades she has worked on water issues while working in or alongside state government, including a five-year stint in the late 1990s as the legal counsel for the Water Quality Control Commission.
At the center of the debate lies oilfield wastewater — also known as produced water — which is toxic and possibly laced with chemicals that operators consider “trade secrets” and do not have to publicly identify. Projects like the New Mexico Produced Water Research Consortium have worked for years to perfect industrial-scale wastewater purification.
The Water, Access, Treatment and Reuse Alliance, which represents oil companies, wastewater treatment firms and other, unnamed parties, petitioned the committee to rewrite its ruling. It claimed the science of wastewater treatment had dramatically improved in the past year and the May ruling should therefore be rewritten. Environmental groups, which vigorously supported the original rule, say the rule should stand for its built-in five-year lifespan.
At the August meeting, the four secretaries — from the Office of the State Engineer, the Environment Department, the Department of Agriculture and the Department of Health — were joined by the director of the Game and Fish Department and the chair of the Soil and Water Conservation Commission. A representative from New Mexico Tech, another from the State Parks Division and four members at large rounded out the meeting.
Led by Kenney, all but three voted to reverse course and proceed with the Water, Access, Treatment and Reuse Alliance petition to pursue using treated wastewater outside the oilfields. No future hearings on the matter are currently scheduled.
Kenney said, “It’s not uncommon for the cabinet to band together around a governor priority.”
That priority is the governor’s 50-Year Water Action Plan, he said. Among many initiatives, it calls for the state to develop a legal path for broader use of oilfield wastewater by 2026. The Water Quality Control Commission’s May vote likely eliminated that possibility.
“I just wish the administration would come out … and be upfront and transparent about what’s going on,” Fox said.
Two things are likely going on. One: Lujan Grisham wants a new source of water for industrial uses in a state suffering through a historic drought. And two: The oil and gas industry has a growing problem with tightly regulated, toxic wastewater it can’t easily dispose of.
For years, Lujan Grisham and the industry have wanted to see one problem solve the other, with the wastewater cleaned and approved for use outside oilfield applications, currently the only legal use in New Mexico. That was a goal of the governor’s Strategic Water Supply, part of the 50-Year Water Action Plan. The supply creates a new water source for new businesses as the state’s freshwater supplies dwindle from climate change. The Strategic Water Supply bill originally included oilfield wastewater, but the state Legislature stripped out that language, leaving brackish aquifers deep underground as the sole source for new water.
The Legislature balked in large part because oilfield wastewater is highly toxic, hard to clean and difficult to test. Debating the idea before the Water Quality Control Commission switched the forum from the legislative to the bureaucratic realm, where the number of people involved is smaller and nearly all of them have been appointed by the governor.
Kenney has been on the commission since 2019 but until recently sent a representative to the commission meetings in his stead. At his first meeting in July, he supported the petition to remake the wastewater rule, though five of his own Environment Department scientists had previously testified that treated oilfield wastewater could not be safely used elsewhere. When he attended the August meeting, his second, Kenney led the commission to a divided vote to proceed with the petition.
Kenney said that water treatment science had changed so much even before the commission’s May vote that the petition deserved to be considered. The May rule, he said, was guided by “2022 or earlier science” and the process didn’t allow for subsequent research to be admitted as evidence. Hearings do have cutoff dates after which new information generally can’t be introduced, to give commissioners a fixed set of information to ponder. “We couldn’t introduce new testimony,” he said.
Fox disagreed. “Scientific materials were NOT limited to 2022 materials, and peer reviewed articles and other materials from 2023 and 2024 came into evidence,” she said in an email. “It was possible to introduce into evidence science up through May 2024,” she said in a subsequent phone call. Deliberations ran for a year beyond that.
Fox acknowledged the technology to turn toxic brine into demonstrably safe water is “inching along.” Even so, “There hasn’t been some sort of earth-shattering [scientific] article that says, ‘Hey! We got this one! We got a silver bullet here!’”
Jennifer Bradfute, president of the Water, Access, Treatment and Reuse Alliance, disagrees. She said her group has a collection of recent scientific papers showing successful treatment of oilfield wastewater. During the August hearing, she held up as evidence a list of scientific papers she said she found on Google Scholar.
Fox later dismissed the list, saying, “Some are relevant, some are not relevant, but none are showing that discharge at scale is safe. It’s just a bunch of articles on produced water.”
Pei Xu, a professor in the department of civil engineering at New Mexico State University and a lead researcher at the Produced Water Research Consortium, is at the bleeding edge of several scientific studies currently testing the safety of different water treatment and testing procedures for oilfield wastewater. In a detailed interview, she described current, unfinished studies quantifying any effects of treated water on small animals and plants. She also shared a half-dozen recent papers indicating successful treatment of oilfield wastewater.
Xu said she is confident that wastewater can be treated to safe levels today. However, she said, “If everybody looks for the peer-reviewed publications, I think we still need some time, especially related to all these ongoing studies.” Peer review, the gold standard of scientific research, allows other scientists in the field to critique the work done. It’s a process that can take months after the research has finished.
In the end, Xu said that it’s not her decision to use treated water outside a testing laboratory — that rests with the state. “I will work on science, and then how they will utilize the data, it’ll be up to the regulators,” she said.
During the August hearing, commissioners asked Kenney if Environment Department scientists could validate the results of any new studies for the commission.
Environment Department scientists had previously testified that research into wastewater purification technology had not advanced to a point that it was safe to use in large scale applications beyond the oilfield.
“I suspect most of the commissioners do not feel they are technically qualified to determine whether the results that are presented by these … new papers and studies, if they are in fact truthful,” said Thomson, chair of the committee.
In fact, state law says, “The water quality control commission shall receive staff support from the department of environment.”
At the commission meeting, however, Zachary Ogaz, general counsel for the Environment Department, said the department had “no obligation” to make its scientists available. And Kenney hedged, saying that department turnover means scientists would “need to get up to speed” in order to testify before the commission.
“While I think it’s important to have a regulator validate the science, I think it is the obligation of the parties to present testimony that can be verified and validated,” he said.
On Sept. 4, Mariel Nanasi of New Energy Economy filed a motion requesting that the Water Quality Control Commission require the Water, Access, Treatment and Reuse Alliance to “disclose the scientific basis” relied on to develop its petition.
On Sept. 19, Bradfute’s group responded, asking the commission to deny that motion, calling it an “extra-regulatory” requirement that should be addressed in a hearing. Even so, the response included a statement from a scientist working at a Texas-based wastewater treatment company outlining the last three years of water treatment science, concluding, “The use of treated produced water can occur in a manner that is protective of human health and the environment, provided treatment is robust, monitoring comprehensive, and regulatory safeguards enforced.” It went on to list 16 new and older papers on wastewater science.
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Oilfield wastewater is a growing, expensive headache for oil and gas producers across the country, particularly in the Permian Basin — the nation’s most productive oilfield — which straddles Texas and New Mexico. Around five barrels of wastewater are produced for every barrel of oil in the Permian Basin, and the total has increased every year as the basin’s production has grown.
The water is highly saline and loaded with naturally occurring minerals as well as chemicals added in the drilling process. All of that eventually comes back up the well, mixed with the oil and gas. Sometimes the water is contaminated with naturally occurring radioactive minerals, too.
Neither the federal government nor New Mexico requires drillers to publicly list drilling chemicals considered “trade secrets,” so it’s not perfectly known what goes down and up a well. Colorado does require operators to disclose all chemicals used in fracking, but a recent study alleges that companies there don’t always do so. Chevron, one of the companies named in the study, is represented on the board of the Water, Access, Treatment and Reuse Alliance. (Since the report came out, Chevron has complied with the Colorado law.)
The overarching issue is what to do with the produced water. A small percentage is lightly cleaned and reused to drill new wells — a process that uses millions of gallons per well. For years, companies have also injected the water back into the ground, but that triggers earthquakes and some spectacular leaks. New Mexico tallies how much wastewater is produced and how much is injected, but it doesn’t track how much is shipped to Texas for disposal. The problems continue there.
Recently, ConocoPhillips said it is producing less oil and more water than expected in a Texas field just south of the New Mexico state line because of wastewater contamination from nearby disposal wells. In a motion filed with the Texas Railroad Commission (the state’s main oil and gas regulatory body), ConocoPhillips opposed Pilot Water Solutions’ plan to drill an additional wastewater well in the area. The motion read, “Pilot is banking on increased regional need for disposal capacity resulting from wells producing waste in other Texas counties and New Mexico.” Last year, the New Mexico Oil Conservation Division cancelled 75 proposed wastewater wells along the same stretch of border due to increasingly frequent earthquakes. ConocoPhillips also has a board member at the Water, Access, Treatment and Reuse Alliance.
Bradfute, the alliance president, helped write New Mexico’s law on oil and gas wastewater that clarified who had oversight of the water and barred its use outside the oilfield. The law also created the New Mexico Produced Water Research Consortium to study how to clean and test produced water so it can eventually be used more broadly. Despite years of testing, however, the constantly shifting nature of what is in wastewater raises questions about the treated water’s safety, which is what led the Water Quality Control Commission to nix its broader use in May.
Bradfute formed the Water, Access, Treatment and Reuse Alliance in September 2024, three weeks after final arguments were made in the commission’s original hearings. She said that timing is coincidental — the original impetus was to promote treating brackish and produced water in response to Gov. Lujan Grisham’s 50-Year Water Action Plan.
Bradfute said there are about 25 members of the alliance, but she wouldn’t name them. “Some of my members have been pretty severely attacked by different interest groups as a result of the rulemaking,” she said. “There’s been false Instagram and TikTok videos that certain groups are putting out there definitely attacking individuals by name,” she continued.
Stephen Aldridge, the mayor of tiny Jal, New Mexico, is an Alliance board member with a history of wrangling over water in his corner of the state. Joining was a quick decision for him.
“If there’s a conversation on water in New Mexico, we want a seat at the table,” he said.
Since becoming mayor eight years ago, Aldridge has tussled with a series of oil and water companies that wanted to tap the town’s aquifers for water to drill oil wells in the surrounding Permian Basin.
“Yeah, they don’t like me very much,” he said. “But hell, I’ve got two friends I’m not looking for anymore.” Besides, he said, “I’m damn sure an advocate for this community. That’s my job.”
The work has secured the town water for the foreseeable future, but only just. Aldridge says that there isn’t any excess to promote new business growth. That’s why he has his eye on produced water. Truckloads of the stuff rumble through his town every day.
“I’m not without my concerns, but I’m also inquisitive enough to want to see some pilot [projects] up and running, and I would think that others would be too,” he said. In particular he worries about the toxic remains from the water treatment process. Aldridge knows there would be a lot of it: Where would it go?
He’s waited years, watching the water cleaning science improve. He thinks it will be safe, eventually. Meanwhile, “Let’s don’t hurt ourselves in the process of tripping over a dollar to pick up a dime,” he said.
Key WATR Alliance Players:
The Water, Access, Treatment and Reuse Alliance includes several political and industry heavy-hitters:
- John D’Antonio, a produced water consultant; former state engineer (the state’s top water bureaucrat) appointed by Lujan Grisham; also New Mexico Environment Department secretary under Democratic Gov. Bill Richardson
- Deanna Archuleta, a member of the Vogel Group lobbying and consulting firm; former Washington, D.C.-based lobbyist for Exxon-Mobil; and controversial appointee to head the state Game Commission by Lujan Grisham
- Jason Sandel, a friend and political donor to Lujan Grisham and the head of a Farmington-based oilfield services conglomerate
- Tiffany Polak, policy adviser for Occidental Petroleum; a former deputy director of the state’s Oil Conservation Division
- Kathy Ytuarte, the former director of administrative services at the New Mexico Oil and Gas Association
A review of Lujan Grisham’s published calendars shows that alliance board members and representatives of companies publicly associated with the alliance have collectively visited the governor’s office 20 times since she took office in 2019.
This story first published in Source New Mexico and Capital & Main.