The Senate Conservation Committee passed a bill that would make spilling produced water, the toxic flowback water generated in oil extraction, illegal. 

Democratic Senators Antoinette Sedillo Lopez of Albuquerque and Liz Stefanics of Cerillos sponsored SB 86, which would allow state regulators to impose fines on operators for produced water and oil and gas-related spills. It would also limit the use of freshwater in the oil field and require produced water be tracked by operators.

“The oil and gas industry uses a massive amount of water that is impacting agricultural use, and has the potential to completely deplete our aquifers, Sedillo Lopez said during a committee hearing, pointing to the Ogallala aquifer in southeastern New Mexico. “At an average of two or more spills of this toxic waste today, it threatens to turn the Permian Basin and other areas where fracking occurs into a wasteland — or as some have called it, a sacrifice zone.”

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The bill would also direct the Energy, Minerals and Natural Resources Department to adopt rules relating to produced water and other waste fluids that are “protective of public health, worker safety and natural resources.” 

Sedillo Lopez said the bill would increase transparency and accountability around oil and gas operations in the state, including tracing the use of freshwater in the oil field and requiring operators to disclose the toxins in spilled and released produced water, including naturally-occurring radiation.

Norm Gaume, a water expert and former director of the Interstate Stream Commission who spoke in support of the bill, noted that many oil and gas operators are already limiting the use of freshwater in their operations.

“Every bit of fresh or brackish water unnecessarily used for deep drilling and fracking is turned into poisonous wastewater laden with salt,” he said. “The industry wastewater volume is outstripping the capacity of nearby disposal wells. Senate Bill 86 would help New Mexico by preserving scarce freshwater resources, and also by reducing the volume of oil and gas wastewater requiring safe disposal.”

The legislation is supported by many environmental groups in the state, including the Sierra Club, Retake Our Democracy, Amigos Bravos, the youth climate group YUCCA, the Center for Civic Policy and the faith-based New Mexico interfaith Power and Light, among others. 

“Toxic fracking flow back is not water. It is a fluid containing known carcinogens and unknown proprietary chemicals. It is radioactive waste, but it has not been treated as such,” said Artemisio Romero y Carver, a member of YUCCA. “I am 18 years old. I deserve a responsible legacy from you, our newly elected lawmakers and leaders. Please do not leave my generation with an irreversible radioactive mess. Our future, our health and our water cannot be treated as forfeit.”

Lobbyists for Marathon Oil, Devon Energy, Chevron, the New Mexico Oil and Gas Association and the Independent Petroleum Association of New Mexico opposed the bill, arguing that the bill would be in conflict with the Produced Water Act of 2019.

“The question in front of you today is less about oil and gas industries’ use of water and more about whether or not the state wants to continue pursuing the use of recycled and treated produced water. This is a very technical issue that was addressed in 2019 in the Produced Water Act,” one lobbyist said. 

The bill was also opposed by the San Juan Water Commission, the Albuquerque Chamber of Commerce and the Houston, Texas-based oilfield water management firm Select Energy Services. Those three groups were concerned that the bill would reduce the state’s competitiveness in oil and gas extraction. 

The New Mexico Cattle Growers Association and other water rights groups opposed the bill over concerns that it would infringe on water rights holders’ ability to sell freshwater to oil and gas operators in the state’s two extraction regions. 

The committee adopted an amendment that made a few changes to clarify the bill’s language. Sen. David Gallegos, R-Eunice, raised concerns that the bill would drive oil and gas operators to Texas. 

Sedillo Lopez said she thinks it’s unlikely this bill would have that type of impact, and pointed out that the royalty rates are actually higher in Texas than in New Mexico. 

“We should be open for business, not open for exploitation,” she said. 

The bill ultimately passed 5-4, with Democratic Senator Joseph Cervantes of Las Cruces voting with Republicans on the committee against the bill.