Op-ed by CVNM Water Quality and Land Restoration Advocate Douglass
We live in a time of profound erosion of faith in public institutions of all kinds and at every level. New Mexico’s Water Quality Control Commission may be the latest victim.
In May, the commission adopted a rule prohibiting the discharge of treated and untreated oil field wastewater (misleadingly called “produced water”) to all groundwater and surface water outside oil fields in New Mexico, as well as prohibiting its reuse for industrial projects outside the oil field. The rule would sunset after five years, giving supporters of oil field wastewater use time to provide a better scientific and technical basis for their arguments, if possible. The decision came after 18 months of meetings, over 1,000 pages of documents and a two-week hearing that included extended expert testimony from New Mexico Environment Department staff, the oil and gas industry and nonprofit groups.
In an unprecedented action, in July the Water Quality Control Commission voted to rehear the rule. The commission agreed to consider a new proposal that would allow both discharges and uses of oil field wastewater outside the oil field, gutting the regulation adopted in May and slated to go into effect in July. The proposal came from the Water Access Treatment & Reuse Alliance, or WATR Alliance, made up of representatives from the oil and gas and oil field wastewater industries.
The Santa Fe New Mexican reported on the Water Quality Control Commission decision process (“Gov.’s Office emails raise bias concerns on water board,” Sept. 16). The article reported on a “huddle” to discuss the governor’s support for the WATR Alliance proposal. After that meeting, Environment Department Secretary James Kenney sent an email message to the other administration members of the commission requesting that they attend the hearing personally instead of sending their designees. His message, sent July 7, was responded to by the governor’s deputy chief operating officer, who said: “Thank you, Secretary. As per our huddle discussion, we need everyone’s commitment to get this over the finished [sic] line.”
There were two differences between the earlier decision prohibiting oil field wastewater discharge and use and the new one setting a hearing on a proposal that would allow these practices. One was the presence of administrative agency heads appointed by the governor instead of staff experts, which is not normal procedure. The second was the absence of Environment Department scientists to offer testimony as they had before, which is unprecedented.
The “huddle” and the message to get the hearing on the new proposal “over the finish line” at a minimum give the Water Quality Control Commission the appearance of bias and conflict of interest, of being a regulatory agency that will set politics above science and the law. The commission’s rules state that its members cannot take part in proceedings in which their impartiality or fairness may be questioned.
The New Mexico Supreme Court reached the same conclusion in a case outlining standards for all administrative agencies. It also means Water Quality Control Commission member votes almost certainly were not all based on the scientific and technical evidence presented (or not presented) to the commission. The New Mexico Court of Appeals, in an earlier case involving the commission, ruled that administrative agency decisions must be based on evidence presented to the agencies.
For these reasons, the members of the Water Quality Control Commission appointed by the governor must be disqualified from voting on the WATR Alliance petition. In addition, the commission should reverse its July decision and reinstate the May ruling. Doing this would be a first and necessary step to restoring faith in the Water Quality Control Commission and the rulemaking process meant to protect the environment and public health.
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Conservation Voters New Mexico is a statewide, nonpartisan nonprofit committed to connecting the people of New Mexico to their political power to protect our air, land and water for a healthy Land of Enchantment. We do this by mobilizing voters, winning elections, holding elected of icials accountable and advancing responsible public policies.