THE REGULATORY FRAMEWORK OF PRODUCED WATER IN NEW MEXICO AND WHY N.M. STAT. ANN. [section] 72-12-25(B)(1) (2009) SHOULD BE AMENDED

Produced water is a problem. This brackish byproduct of oil and gas production contains salts, dissolved solids, organic compounds, and naturally occurring radioactive materials. And that is putting it nicely. Produced water is seen as a liability to oil and gas producers and is generally disposed of via reinjection or open pits. The disposal is costly and creates future environmental hazards. However, through emerging technology and minor alterations to the New Mexico Statutes, this liability can be converted to an asset for all New Mexicans. In 2009, the New Mexico Legislature bifurcated the appropriation method for produced water by the intended future use of the water. Appropriations for certain industrial and agricultural uses are allowed under a truncated appropriation process; while any other use must follow the costlier traditional appropriation method. Under the new rules, oil and gas producers need only file a form with the State to 'appropriate' the water for reinjection or disposal via certain industrial uses. However, if the producer desires to use the produced water in any non-enumerated purpose, including making the water potable, the producer must follow the costly and time consuming traditional appropriation route. By removing this bifurcation, the New Mexico Legislature would encourage producers to actively seek additional uses of what was once deemed a liability. This would reduce environmental concerns and lower overall oil and gas production costs while 'creating' more water resources in an arid state.
I. INTRODUCTIONIn 2015, New Mexico oil and gas production generated almost 900 million barrels (1) of briny water that is produced along with oil and gas. This briny water is [...]