Mario Atencio’s family never received a notification that 1,100 barrels of produced water—a byproduct of oil and gas extraction—had spilled on their allotment in February 2019 near Counselor, New Mexico in the Eastern Agency of the Navajo Nation, near Chaco Culture National Historical Park.

It wasn’t until later that the Atencios learned about the incident and, with the help of Silas Grant from the Center for Biological Diversity, were able to track down the spill report that companies are required to file with the New Mexico Oil Conservation Division. 

The report details how a contractor noticed fluids flowing from a 6-inch transfer line. This line was supposed to move produced water to a recycling facility. Produced water contains highly brackish groundwater from deep aquifers as well as chemicals from the hydraulic fracturing process and hydrocarbons such as crude oil. 

A total of 1,400 barrels spilled—1,100 of those were produced water and another 300 were crude oil.

Through the report, Atencio learned how the produced water flowed down a small unnamed tributary of Escavada Wash—the place where his grandmother bathes her sheep. He learned how it occurred in an area where the freshwater aquifer is just 50 feet below the surface, which is a rarity in the desert environment where aquifers tend to be deep and laden with salt. 

The most economic option to deal with produced water has been to inject it deep underground, to avoid contaminating the surrounding environment. But in states like New Mexico, where a bustling oil and gas industry overlaps with a strained water supply, what once was viewed as a nuisance to be disposed of, is now being viewed as a valuable, untapped natural resource. Relying on it more has the potential to amplify its risks.  

Atencio had been a vocal critic of the oil and gas industry before the spill and was among the Navajo people advocating for a moratorium on extraction in parts of Eastern Agency surrounding Chaco Culture National Historical Park. 

Now he says the state has failed in its constitutional duty to protect residents from pollution caused by oil and gas extraction. 

The Atencios are not alone in facing pollution from produced water spills, which are common in New Mexico in part due to a boom in extraction.

His family and other advocates had filed a lawsuit against New Mexico months before they learned of a new plan for produced water. That lawsuit is still making its way through the court system. In April, a judge heard oral arguments on a motion to dismiss the lawsuit, but has not yet issued a ruling.

It was late November 2023 when Gov. Michelle Lujan Grisham attended the United Nations Climate Change Conference, or COP-28. During a panel discussion, Lujan Grisham announced a plan she dubbed “the strategic water supply.” The funding for the strategic water supply—a proposed $500 million—requires legislative approval and lawmakers expressed concerns about some of the unknowns during this year’s session. A bill that would have provided some of the funding, but not the amount the governor requested, failed to pass this year. New legislation is expected to be introduced next year. 

The concept is that the state of New Mexico will act as a middle man between companies treating brackish and produced water and the companies that can use the treated water for industrial purposes such as hydrogen production or manufacturing. Lujan Grisham’s administration has described this as a way to bolster the renewable energy industry in a state where fresh water supplies are already strained.

“We’re not looking for potable, drinkable water supplies,” Lujan Grisham said during a press conference in January. “We’re trying to preserve those. We’re identifying water supplies that do other things.”

But activists like Atencio are worried that this will have unintended consequences.

“To hear this announced on the world stage for political points, it just leaves a bad taste in the mouth,” Atencio said.

Atencio expressed concern that the sacred landscape near Chaco Culture National Historical Park could be exploited to extract produced water for the “governor’s newfangled idea.”

The proposal comes as New Mexico experienced more than two produced water spills a day over a 13 year time period stretching from 2010 to 2023. While produced water spills are not directly connected to the strategic water supply, activists fear that the transportation of produced water to sites for treatment may lead to increased spills. 

Opposition to produced water

There are a variety of reasons why environmental advocates are concerned about the proposal. 

They point to the uncertainties about what is in the produced water—which could create some challenges for treating it—as well as the history of spills like the one that occurred on the Atencios’ allotment. If produced water is being moved off of the oil fields, they say it could lead to increased spills either through pipeline ruptures or, if being moved by truck, through crashes.

An average of two produced water spills happen per day in New Mexico.

Last year, more than 700 produced water spills occurred, according to data available from the state’s Oil Conservation Division, and already, in 2024, there have been more than 220 produced water spills of varying sizes. Most produced water spills get little attention and nearby residents or land owners may not even receive notification.

“We’ve been really trying to get more accountability for the ongoing crisis of produced water and waste spills that are happening all the time in New Mexico,” Grant said. Grant works for the Center for Biological Diversity, which has been assisting the Atencios with a lawsuit brought against the state of New Mexico.

They said New Mexico’s oil and gas industry has a huge waste problem as well as a problem with not enough maintenance or inspections. Even though New Mexico has a rule that prohibits spills of produced water, Grant said those spills are continuing to occur at record rates that coincide with the increased oil and gas production.

Christopher Lewis, a lead environmental scientist with the U.S. Department of Energy, said during a New Mexico Water Quality Control Commission in May that many of the constituents found in untreated produced water are known hazards. He gave examples of arsenic, barium, bromide, mercury, benzene, toluene, ethylbenzene, and xylenes.

“These constituents have the potential to cause carcinogenic, developmental, reproductive or other adverse effects in humans and other biological organisms,” he said.

But even if they weren’t there, the untreated produced water would be toxic.

“The concentration of salts alone in raw produced water are high enough to be toxic to freshwater organisms, meaning raw produced water discharged into a freshwater stream or lake poses a risk of harming aquatic ecosystems,” he said.

This was seen in 2021 near the Pecos River in Eddy County, New Mexico when corrosion at a facility led to a small amount of produced water leaking into a backwater pool on private land. While the pollution never reached the river itself, crews found 245 minnows dead in the pool that the contamination reached.

Exactly what is in the produced water varies from basin to basin and, to some extent, even operator to operator.

The variability is one reason that the New Mexico Environment Department (NMED) has proposed a new rule that would prohibit discharges of produced water, even after it has been treated. Discharge permits are needed for activities that would impact surface or groundwater.

Some of the questions that remain include how much produced water is even available and if it can be safely treated. 

This is because the oil and gas industry keeps some of the chemicals used in fracking fluids secret and, Lewis said, tests may not be able to detect all of them.

Additionally, he said, interactions that occur during the drilling process can lead to chemical transformations that would make it hard to know what constituents are present in the produced water.

“The very nature of its highly variable constituents mean that produced water from one well may pose a significantly different risk than produced water from another one,” Lewis said.

Should the strategic water supply become a reality, NMED will need to set quality standards that the treated water has to meet.

Shrinking supplies driving interest in produced water

Pressure to find uses for produced water comes as the state, and the West in general, sees existing water supplies shrinking as the region warms due to climate change. New Mexico officials say the state will have 25% less water available in 2050.

“So if we do nothing, where would you make 25 percent cuts?” Lujan Grisham said during a January press conference about water. “Would it be in one community, one region of the state and one reservoir?”

During the press conference, the governor said conservation is needed to close the gap, but said that New Mexico also needs to find new water supplies that can support continued economic growth such as manufacturing.

But Lewis said there aren’t even tests to detect some of the chemicals that might be present in produced water. And, because treatment needs to be tailored to the type of contaminants present, this makes it hard to know what methods to use to clean up produced water.

One of the more common ways to treat produced water is using a reverse osmosis filter.

Kannalis LLC is one of the companies experimenting with produced water treatment and use in New Mexico as part of a demonstration project.

One of the experiments that Kannalis performed involved using both reverse osmosis and salt water reverse osmosis technologies at the Brackish Groundwater National Desalination Research Facility in Alamogordo to treat the water and then using the treated water to grow forage crops at a greenhouse owned by the New Mexico State University that is located near Navajo Nation’s Ojo Encino Chapter House.

Kannalis is now experimenting on using treated produced water to grow trees.

But reverse osmosis does not work on all types of produced water.

In 2019—the same year that produced water contaminated the water that Atencio’s family has relied upon for generations—the New Mexico legislature passed the Produced Water Act. This law established a framework for how produced water would be managed outside of the oil and gas sector and it gave NMED statutory control and authority. NMED then entered into a memorandum of understanding with New Mexico State University which created the New Mexico Produced Water Research Consortium. This consortium is tasked with establishing science-based methods and policies for using treated produced water, and stems from previous state initiatives to find a use for produced water.

Mike Hightower heads the group. During a May Water Quality Control Commission hearing regarding produced water, Hightower said that in the Permian Basin, where produced water is generally three times as salty as seawater, thermal technologies will be needed to treat it. He said there have been significant advancements in those technologies over the past 40 years.

But, while the San Juan Basin produced water is easier to treat, he said there are communities in the Permian Basin that could benefit from treated produced water. 

“In the Permian Basin, you have some cities like Jal that are really close to being out of water,: Hightower said. “And maybe that’s a place where the risks of not having water versus the risks of using treated produced water is something that they might want to take on board more easily or more quickly.”

He said that there may need to be regional standards for treated produced water rather than a state standard due to the differences in produced water between the three oil and gas basins in New Mexico.

“There’s different qualities of water, different locations and different risks by different communities that may be interested in using that water quicker than Albuquerque or Santa Fe,” he said.

Outside of New Mexico, states rely on produced water

During the May hearing, Hightower said that there are around 30 states in the country that have produced water and many of them are facing drought or water shortages. Not all of the states allow produced water to be used outside of the oilfields, but some of the states that do include California, Colorado, Ohio, Pennsylvania, and Wyoming. 

More than a dozen states, including Ohio, allow it to be used for dust control. Another common application is as a de-icer. Because produced water has high salinity and can melt snow and ice, it is spread on roads in states like Ohio and New York during the winter.

In the western United States, where water resources are naturally more strained, states are turning to produced water to augment their diminishing supplies.

When it comes to agriculture, crops in Kern County in the central valley of California are irrigated with produced water that has been diluted using freshwater resources. This practice has been going on for decades.

In Montana and Wyoming, produced water has been used to irrigate lands in the Powder River Basin in an effort to restore rangelands following overgrazing. 

Wyoming has also allowed ranchers to use produced water for livestock. Additionally, produced water in Wyoming has been used for wildlife and to enhance wetlands.

The Town of Wellington in northern Colorado found that using treated produced water for aquifer recharge could significantly increase the amount of water available for residents by injecting the treated water into the aquifer. A similar demonstration project is underway in northern New Mexico’s San Juan Basin.

For produced water proponents, the oil field wastewater represents a largely untapped possibility. Nationwide, about one to two percent of the produced water is used outside of the oil fields. 

Hightower sees the potential to use produced water in the San Juan Basin to help people who currently have to haul water long distances to their houses.

“In those rural areas of northwestern New Mexico, there’s huge opportunity to provide some social improvements, economic improvements for people in that region,” he said. 

Currently, though, that is outside of the scope of the state’s proposed strategic water supply, which would limit the use of treated produced water to industrial purposes. 

But in places where produced water is used outside of the oilfields, the use has often been met with protests from environmental activists.

During a 2018 presentation that was part of the WateReuse Association’s webcast series, Christopher Bellona with the Colorado School of Mines identified public perception as one of the challenges facing produced water. And, during a 2022 presentation, the New Mexico Produced Water Research Consortium listed public perception as one of the biggest hurdles.

In California, the use of produced water in agriculture has led to protests outside the state Capitol. And, in Pennsylvania, concerns about potential contamination led to a moratorium in 2018 on spreading produced water on roadways, including as a de-icer.

This story was produced by New Mexico Political Report, with support from The Water Desk at the University of Colorado Boulder’s Center for Environmental Journalism.