Funding for New Mexico in Focus is provided by viewers like you.

This week on New Mexico in Focus, the clock keeps ticking on a proposal to expand the use of fracking wastewater in our state.

>>Sayer: Water is something that matters to all of us.

We're all water stakeholders.

>>Fox: But is the science at a point, as I've said, to allow large scale discharge to surfacing groundwater?

The scientists we talked to say no.

>>Jeff: And the board is set for how Western states will divvy up what's left in the lower Rio Grande.

New Mexico in Focus starts now.

Thanks for joining us this week.

I'm executive producer Jeff Proctor.

Nash Jones is catching a well-deserved breath.

Let's begin tonight by acknowledging the mercy of rainfall across broad swaths of the state.

The central mountain chain, the Rio Grande Valley, the northern mountains and much of western New Mexico have all clocked measurable amounts in recent weeks.

It's about time.

But let's also agree that the water picture here is far more nuanced and deep seated than what clouds twofold to hold back and afternoon thunderstorms the torrential kind could ever solve alone.

That's what we've got for you this week, when we'll revisit a few previously aired stories, all connected in one way or another by the challenges we face with two parts hydrogen, one part oxygen.

Back in May, the US Supreme Court closed the book on a 13 year street fight that came to be known as Texas versus New Mexico and Colorado.

The justices order, which flowed from the 1938 Rio Grande Compact, at long last settled how the states must divvy up water below Elephant Butte Reservoir, among other provisions.

Tonight, we'll show you a conversation Nash had in June with Danielle Prokop, a journalist who has followed the case for years.

And at the bottom of the hour.

We have Nash's May 1st chat with New Mexico Environment Department Secretary James Kenney about the state's efforts to demand cleanup of and accountability around PFAS, the so-called forever chemicals that have poisoned our soil and water for decades.

There's an update on that story, too, so stick around.

Speaking of public donnybrooks, many of you will be familiar with the push to expand the legal uses for fracking wastewater beyond the state's oil fields.

The idea has powerful friends.

Outgoing Democratic Governor Michelle Lujan Grisham among them.

There's plenty of opposition to more on that and due course.

Driving the bus for the let's do It crowd is an oil and gas industry backed group called the Water Access, Treatment and Reuse Alliance, cheekily acronym the WATR Alliance.

On June 9th, capital and main reporter and in Focus correspondent Jerry Redfern sat with Matthias Sayer, the group's vice president, to dig in to why the WATR Alliance says using so-called produced water and a host of new contacts is safe, and why it should happen now.

Jerry: Thanks for joining us today.

>> Sayer: Yeah, thanks for having me.

>> Jerry: Yeah.

So we're going to just sort of jump right into this.

And I think the big question we should probably get out of the way up front is why are we also concerned about this waste water.

I mean, what's in it that has people so worried?

>> Sayer: Well, I think using the term wastewater is a good indicator of why we should be concerned.

Right.

When we're talking about a waste product and then potentially recycling or reusing that waste product.

Legitimate question should be answered about what's in the waste and what are the intended uses of that waste.

And so in the context of produced water and reusing treated produced water, there are there are chemical compounds in that water that we need to be worried about.

And so when we have a conversation about reusing this treated wastewater, we need to be very mindful of of the answers to those questions.

>> Jerry: So what what are those compounds?

I mean, the proposal that you've brought up before, the Water Quality Control Commission, notes 400 plus different chemical compounds.

There are pages of chemicals noted on there.

Are those all of the compounds that could show up in this?

Are there more?

What are they?

>> Sayer: Yeah, they're the list that you're talking about is the list that is included in the draft rule as an appendix.

That that draft rule, that list comes from work product generated from the New Mexico Produce Water Research Consortium, and they colloquially call it the NYPD's Plus list.

And that list was developed after on the back of of years of work and sampling of water from the Permian Basin, both the New Mexico and Texas side.

>> Jerry: So that list that goes on for pages, it has a ton of different chemicals in there, but none of those chemicals have actual amounts next to them, like it needs to be below this to be considered safe.

Why is that?

When when would that be added in, and why hasn't it been added in to this point?

>> Sayer: Yeah.

And there, you know, as I mentioned, there was there's work that has been done and work continuing to be done at both NMSU and other institutions, both in New Mexico and elsewhere.

And there are standards for for the bulk of the compounds in that list.

That being said, there are compounds on that list for which there is not a standard published either in the New Mexico regulatory framework or in the EPA framework.

>> Jerry: So this brings a, you know, a question for me talking about chemicals and treatment and things like that.

And it's a question around the word science.

And an awful lot of what we're talking about is new technology that comes from the, from the consortium developing new technologies to sort of polish the water, to make it clean, to be usable and different concerns.

But then there's also the science aspect of it.

And I think those two terms kind of get conflated.

And I want to sort of clear that air before we go a bit further.

And science, sort of the gold standard of science is peer review, where you take the technology that you've figured out and you open that technology up to third parties not influenced by or part of the group that did the research in the first place.

And you see if those people can reproduce what you've come up with, if they can reproduce the technology, if they can reproduce those results.

How many of the technologies that have been brought up to clean this water so far through the consortium or other groups have gone through this process, the peer review process and are like fully out the other side, you know, science stamp of approval.

>> Sayer: Yeah, I think it's an important question.

And to my first kind of response to that question is to clarify a little bit.

When we talk about technology to treat produced water, it is not so much that that there is new technology to treat this water, but it's a combination.

It's a treatment train.

So it's putting together the right treatment train, the right pieces of treatment in your train to address the chemicals that we know are in the water.

And in terms of, you know, which of these treatment trains have they been reproduced?

Have they?

Has there been peer review analysis of the ability of these treatment trains?

I don't have a number for you to say.

How many, you know, replications of a particular train, you know, have been attempted or executed, but with the numbers is, you know, it certainly has happened.

And then there is a body of peer review literature looking at the data that came from these different treatment trains treating this specific water, because that is relevant, right.

Produced water.

When we talk about produced water, it exists across the globe.

Anytime water comes up with oil and gas production we call that produce water.

But just like, you know, water in the Pecos as compared to water in the Susquehanna, those water qualities are going to be very different.

Produce water is very similar.

Produce water from the Permian Basin is very different from produced water in the Marcellus Basin in Pennsylvania.

>> Jerry: Sure but we're talking about rules here in New Mexico, and particularly out of the Permian, which is producing 97% of the produced water in the state.

So I think that's what we're kind of looking at here.

Right.

And to that point, just backing up a bit, last year in a story, I talked with a peju scientist at New Mexico State who was sort of lead scientist on a lot of this work being done.

She refers to it as science.

And she was saying, if everybody looks for the peer reviewed publications, I think we still need some time, especially related to all these ongoing studies, as you were just talking about.

So wouldn't just pacing this a bit, I mean, slowing this, this process down a bit, give time for all that peer reviewed work to come in?

So you could say, look, we've done the work.

We've got these new trains, the trains check out.

Not only do they check out we have third parties that say these new trains check out.

Wouldn't that be a way to actually get rid of a lot of the issues you're bumping into at this point on the public sphere?

>> Sayer: Yeah.

Well, I think there's there's two answers to that question, or at least two ways to examine the question.

First, you know, if you spend a lot of time with doctors, you and her team, what becomes very clear is that the state of the science, the body of research examining the data that's been produced, is, is conclusive that we can do this in ways that are protective of human health in the environment.

Today.

>> Jerry: I did say that I agree >> Sayer: However, what becomes hard is to distill that down into a sentence, right?

You can't distill the the body of research into a sentence or a paragraph.

And that's what has been attempted to be done in so many ways and in so many times right now in front of the Water Quality Control Commission.

Right.

And so what we think is appropriate is a hearing.

And through the course of that hearing, put all of this body of research in front of them and show how that science supports the framework that's been proposed in the draft rule.

Ultimately, it's not my opinion, your opinion, or even Doctor Shuo█s opinion that matters.

It'll be the commission reviewing the testimony from the experts to say what we think based on the state of the science as of today, that X is appropriate.

Maybe not X plus Y, maybe it's just X, maybe it is X plus Y. But it's a decision for the consortium to make or the commission to make.

>> Jerry: Right?

Well, okay.

I get back to this idea though.

If you had the time to do the basic science, get it through that peer review process as she brought up herself.

Yes.

The research that she has done, she's very she's very confident in I, she certainly has said this repeatedly to all sorts of people, not just to me, not just to you.

And I believe it.

I believe she believes what she sees.

Right.

But that's still not quite the idea that you give it to a third party to check it out, you know, check your work, check their math.

And I and I still don't see why you wouldn't let that process play out first.

I'll tack something on to this as well.

And I might not seem at first to be comparable, but I think in a way it is.

And it's the way that the methane rules were brought up for all and gas production where they came about, because the state brought together players from oil and gas, brought together environmental groups, brought together citizen groups, and everybody sat down and well in several rooms over the course of a long period of time.

And they hammered it all out in advance before bringing it up before rulemaking.

Right.

Why don't we wait for that science to be done?

And or why didn't we start with a process where you bring everybody together first and figure out figure out where the problems are and then hammer it out from there?

>> Sayer: Yeah, it's I think it's a good comparison, but I think there's an important distinction here in terms of what we're talking about.

And this is what I mentioned.

There's two different ways to look at that question.

The first is what I said earlier.

The second is it's a conversation about social license and negotiating social license.

And I think when you when you think about and talk about the Methane Advisory Group, that really was a negotiation of social license between the different stakeholders.

>> Jerry: Have to pause you there.

What does social what do you mean here when you're talking about social license and negotiating social license and then go ahead.

>> Sayer: Yeah I mean I suppose my definition of social license would be trust from the community.

Right.

And the community to appreciate that, that what is being proposed and ultimately, if adopted by a regulatory body, is something that that communities and the average New Mexican can trust in.

And that is a hard thing to negotiate.

I think that that's a harder thing to negotiate than the actual technical merit of the rule itself.

>> Jerry: Well, that's that's kind of what we're talking about here, really, isn't it?

We have this wide divide between, say, environmental groups and the water, the water alliance and what you're trying to do.

And I guess I'm wondering why maybe this was the governor's job, to get everybody into a room and beat their heads.

>> Sayer: Yeah I think it is a fair question about who should manage, who should negotiate social license.

And I think in the context of this petition, it it is a complicated issue.

And I think you could probably always say we could and should do more as it pertains to negotiating social license.

Water is something that matters to all of us.

We're all water stakeholders.

And so anytime someone has a question about the quality of the water that's being delivered to them, whether it's for irrigation purposes or for potable uses, which is not something we're proposing with this rule.

But legitimate questions should be asked about the quality of that water.

And we've seen across the country, but the West in particular, over the last few decades, where new water recycle projects are proposed and the social license piece always proves to be the most challenging piece because we are, for good reason, sensitive about the water that we're putting into our bodies or our homes or our fields.

>>Jeff: Thanks again to Jerry Redfern for probing the pro produced water case with Matthias Sayer of the WATR Alliance.

You can watch their full conversation on our YouTube page.

I mentioned the chorus of caution around letting the fracking wastewater genie out of the bottle a little while ago, and that's where we're headed next.

But before we get there, a wee update.

You heard Jerry talking with Mr.

Sayer about the state Water Quality Control Commission.

That's the state group that will decide whether to move ahead with expanding the use of fracking wastewater.

When the two of them sat down, a hearing on that decision was still in limbo just in the last week or so.

The commission chair has appointed a hearing officer, who has in turn asked the parties to come in August 18th and hash out a date for the much anticipated hearing.

We'll keep you updated when the hearing itself gets scheduled.

Now to the other side of the issue, Tannis Fox of the Western Environmental Law Center has opposed unleashing this wastewater since whispers of the idea began floating on the wind.

Her team will be there when that hearing finally goes down on May 22nd, Fox came in here to lay out her concerns.

Tannis, thanks so much for being here.

Before we dig into the petition that the commission just accepted, let's back up just a little bit.

Can you talk about what produced water is exactly and how it's being deployed currently.

>> Fox: Produced water is a waste byproduct from oil and gas operations, and it's produced constantly through the drilling and production process.

And it's a combination of both what's called formation water and that is water that is in the geologic formations from which oil and gas comes, and from the fracking, the hydraulic fracturing fluids that are added to the drilling process in order to make the drilling process more efficient.

And both sets of water that produce, produce water have potential contaminants in them.

The formation water, even though it's natural, can also have naturally occurring contaminants such as naturally occurring radioactive materials.

The fracking fluids also can contain harmful water contaminants.

>> Nash: Okay and then how is it being used right now?

>> Nash: So produce water is really a toxic soup that can contain up to over 1000 chemicals.

According to the sort of Seminole Seminole article on produced water.

And right now it is reused within the oil field for drilling purposes.

In New Mexico, about 60% of the produced water produced is reused within the oil field.

That number, in our opinion, should and could be higher, but it has increased over time and then the remainder is, generally speaking, disposed of, like dispose of waste in deep well injection through deep well injection.

>> Nash: Okay.

And the petition that we're talking about, it aims to create a rule to change how and where this produced water can be discharged.

What would the rule allow for if it were to come to fruition?

>> Fox: Well, just backing up a little bit right now, the rule in place from the Water Quality Control Commission is not to allow any discharge whatsoever to groundwater and surface water.

That rule was passed about a year ago.

This petition from a group called the Water Alliance would allow discharge both to groundwater and to surface water.

And New Mexico discharge to groundwater is really a land, any kind of land application because of the potential for any kind of water discharge to migrate down to the water table.

>> Nash: Okay.

All right.

And who requested it?

You mentioned the water alliance.

Who are they and who else is involved in this this petition rulemaking process?

>> Fox: The Water Alliance brought this petition.

They are a industry backed nonprofit group, >> Nash: and it's an acronym for Water Access, Treatment and Reuse.

>> Fox: Correct.

And they are aligned with the oil and gas industry.

And then also the city of Bloomfield.

The counties of San Juan and Lee are also joint petitioners.

>> Nash: And your organization, the Western Environmental Law Center, represents a coalition of environmental groups that oppose this proposed rule.

What is your argument against it?

>> Fox: In our view right now, the science is not there to support large scale discharge of treated produce water to surface or groundwater.

That's that's the real issue here is can treated produce water, be treated to a level that meets all meets all water quality standards, both for groundwater and surface water?

>> Nash: And is that in part the fact that the science is out on this?

Because we don't know actually what's in this stuff.

>> Fox: That's one of the really big problems with produce water, because as I said, it contains it can can contain up to a thousand chemicals, not not in one set of produced water, but it, it varies from well to well, the contents.

Geologic formation to geologic formation.

State to state.

The hydraulic fracturing fluids.

What the contents of those are also varies producer to producer, and those contents aren't required to be disclosed.

So you've got this, mix of potentially dangerous chemicals in this water and you don't know what's there.

And so that's one of the problems.

Another one of the problems is that even knowing what some of the potential contaminants are in there, we don't have we have information that there are potentially hazardous, but we don't necessarily have what are called water quality standards for those contaminants.

And so even though we know that they could be harmful to human health of the environment, we don't know at what levels to be able to say what's safe or what's not.

>> Nash: Would you be opposed to any rule that would allow produced water to be used outside of the fields at all, even in a limited capacity?

>> Fox: The rule right now that the Water Quality Control Commission passed a year ago, that we did support, does allow for pilot projects outside the field.

As long as they're not discharging.

We strongly support the science moving forward, and the science is moving forward.

And the rule in place allows for pilot projects to take the produced water and to study characterization.

That is what's in the produce water and to study how to treat it.

>> Nash: Why is that rule, which as you mentioned, is a year old already being rethought?

If it just we just went through this and that, that rule was established.

Why is it already being brought back?

>> Fox: Well, I got to say, I've been in representing and before the Water Quality Commission, Water Quality Control Commission now for over 20 years, and I've never seen a rulemaking process like this where the Commission passes a rule and almost the next day there's a petition to undo that rule.

And that's what happened.

Under normal circumstances, the Water Quality Control Commission would not allow that that petition to reverse what they had just done for a year and a half worth of work, I might add, to go forward.

>> Nash: What's abnormal about the current circumstances, >> Fox: the this petition and the reuse of produced water is really a governor priority, and she's made that very clear in public statements.

>> Nash: Yeah.

New Mexico is experiencing a water crisis.

Governor Michelle Lujan Grisham has seen the cleanup and reuse of produced water as a potential part of this larger solution that she's that she's proposed.

How much of a dent could produce water make in in our need for water as a state?

>> Fox: Well, reuse or produce water is no panacea given given the numbers, the state generates over something.

Over something north of 2 billion barrels of produced water each year that produce water.

If it were treated, probably only about 50% of the total amount could actually be reused.

>> Nash: Because it would get clean enough >> Fox: Yeah, because it cleans up and it produces.

It's going to produce.

You know, one of the issues is it produces a waste product itself that then has to be disposed of.

And and so the numbers industry isn't really generating a lot of numbers, but produce water is not going to solve the water scarcity problem in New Mexico.

Reuse of produce water.

Brackish water, industrial wastewater is only potentially part of the solution, but conservation is another part of the solution.

>> Nash: Well, following the commission's recent vote, spokesperson for the governor, Liam March, told Source New Mexico in a statement that Lujan Grisham wants to advance science based solutions, including safe and responsible wastewater reuse.

She went on to say that that this vote establishes a pathway to ensure that all of the evidence is on the table before a decision is made.

What do you make of the governor's statements?

>> Fox: I don't think anybody can disagree with the proposition that if we're going to reuse industrial wastewater, that it should be done safely.

Nobody disagrees with that.

I think where the the disagreement lies is what is the state of the science and technology today.

Have there been any large scale studies that show that treated produced water can be safely discharged to ground or surface water?

And from our point of view, there are not.

>>Nash: Well, this petition, it's going to kick off a really long process.

It already has.

That's going to begin with a hearing.

What role could Lujan Grisham leaving office at the end of the year, play in the timeline of when that hearing is scheduled?

>>Fox: Well, that is a good question.

We the hearing is not set yet and we don't know when the hearing will be set.

There was discussion in the commission the other day that it would be set maybe at the end of the year or the beginning of next year, because they've got a very full, fulsome schedule between now and the end of the year.

>>Nash: The difference between the end of the year and the beginning of next year is very big.

When we've got a shift in governor in that time.

So is your organization familiar with pressures to get this hearing scheduled before Luhan Grisham leaves office?

>>Fox: The Environment Department had had taken the position during the legislative session that the hearing could be held by the end of the year.

I think that that would be hard.

It's a really complicated rule.

You know, it's like 40 some odd pages, single spaced.

And part of the problem with the rule is that there are 20 of those pages that are supposed to contain limits on the, on the 400 potential contaminants that could be in produced water from the specifically really from the Permian Basin are left blank.

Those effluent limits, they have an upper and lower range and they're left blank for those 400 contaminants.

>>Nash: They have to be figured out.

>>Fox: Yes, and part of our argument was this petition is not ready for prime time because this critical information is not in the petition.

>>Nash: And so it sounds like your organization would like to see the hearings scheduled next year.

>>Fox: Yes.

Yeah.

We don't have-- I mean, this is like what's missing is part of the heart of the petition.

In addition, it's really super complex.

You can imagine 400 contaminants.

What are the levels?

What are safe levels?

>>Nash: It does sound complex.

In addition to that complexity being part of why you want the hearing to be pushed out.

Is is the governor's race playing any kind of role in that?

When we know that Deb Haaland, in many ways the front runner in the gubernatorial race today, is opposed to the reuse of produced water beyond the oil fields.

>>Fox: Well, you know, I think for our for our purposes, we we really need the hearing to happen at the next year because it's so complex >>Nash: And not because the governor at that time may be somebody who, unlike Luhan Grisham, opposes this rule.

>>Fox: Well, I mean, that could be something that should be taken into account by the Water Quality Control Commission because, you know, do we want a, you know, a hearing to go forward and then for it only to be requested to be stopped by a new governor?

I don't know.

I don't know what a new governor would do, but it it is it does present a question mark for this hearing.

>>Nash: Besides the date of the hearing, is there anything else that you're looking out for in terms of next steps as this lengthy process moves forward?

>>Fox: We were looking out for we're gathering our experts.

We're working with coalition members.

We are talking to members of the public.

I think one thing that I would really like to say is I think that this issue is really tearing the state apart in a way that I haven't seen other water quality control commissions do over, You know, two and a half decades.

And so I think that I think the process should come to stop.

I think there should be a reset, and I think there should be.

And this governor could do that too.

I think there should be a conversation among all the state stakeholders, a real conversation about what we're doing and why.

>>Nash: Tannis Fox thank you so much.

>>Jeff: We sure appreciate Tannis Fox of the Western Environmental Law Center for explaining the many questions surrounding so-called produced water.

This summer, The US Supreme Court settled a 13 year water rights dispute over access to the lower Rio Grande.

Journalist Danielle Prokop has spent years following the case for multiple news organizations.

Not long after that landmark ruling came down in May.

She dropped by the studio to break it down for Nash.

>> Nash: Danielle, thanks so much for being here.

>> Prokop: Thanks for having me, Nash.

So, before we get into the agreement itself and what's been agreed to.

Can you give our viewers a little bit of background?

Like, what is the Rio Grande Compact?

>> Prokop: Absolutely.

It's a 1939 agreement between three states, New Mexico, Texas and Colorado, which share the Rio Grande█s waters between them.

And it was ratified by Congress, which is how all interstate waters are governed in the United States.

This agreement has requirements for water to pass across state lines and at one point into Elephant Butte, in order to make sure that each state is getting its appropriate amount of water.

>> Nash: Okay.

And what were the issues that were taken with how the states were sharing this water?

>> Prokop: Oh, man.

If there's water, it's -- being fought over.

And that is so true on the Rio Grande.

There were a series of lawsuits all over the place between irrigation districts and counties, state governments and counties, the state governments against each other in these overlapping disputes over water on the Rio Grande for a long time.

These really kicked up in the 1990s in a drought period, after we had some good rains in the 90s.

But then there was a drought period in the early 2000, and that really kicked up the intensity of water litigation -- >> Nash: Once there wasn't enough to go around, then when people started fighting.

>> Prokop: That's right.

Scarcity -- Scarcity breeds litigation when it comes to water, But -- what happened here is that there was an agreement that two irrigation districts, one in Texas, one in southern New Mexico, and the federal government came to and New Mexico's Attorney General at the time, Gary King, in 2011, said that New Mexico was being shorted its water and sued -- the federal government in federal court.

And Texas then escalated that in 2013 and took it to the Supreme Court.

The Supreme Court has original jurisdiction over these interstate water disagreements, because it's the only court in America that can decide problems between the states.

>> Nash: Okay, so New Mexico was suing the federal government.

Texas sued New Mexico.

But these alliances kind of, “who was against who” didn't stay stagnant throughout this 13 year period.

So how did that shift around over time?

>> Prokop: It was a serious dosey-doe, really.

Texas accused New Mexico of groundwater pumping and using water for irrigation, Southern New Mexico to the detriment of Texas, saying that we owed them tens of thousands of acre feet.

We're talking billions of dollars, potentially in damages.

And the requirement that New Mexico provides that water, it's an important part of water litigation.

The federal government joined the lawsuit in 2019.

The Supreme Court allowed them to join as a party -- >> Nash: Even though they're not part of the Compact?

>> Prokop: That's right.

It's completely unusual.

It's never happened in water law before, but because the federal government operates important infrastructure there.

Elephant Butte Dam, the very first reclamation dam, the series of canals, they deliver water to the irrigation districts in Mexico.

The Supreme Court agreed that they have a unique interest.

So it was Texas and the federal government arguing that New Mexico's pumping and groundwater use was harming their interests on the Rio Grande.

>> Nash: Okay.

Well -- a settlement has now been reached.

The Supreme Court has accepted that agreement.

What did the justices have to say?

>> Prokop: Yeah, this is the second time that this has happened.

The first time everyone came to the bargaining table, the federal government felt left out.

They felt that the agreement that Texas and New Mexico had worked out to fix the issues -- of making the water measurable at the border, for example, sharing water agreements, agreeing to drought conditions, those were unacceptable to the federal government and the two irrigation districts down there.

>> Nash: And so that was back in, what, 2024?

The Supreme Court declined to accept this agreement.

>> Prokop: That's right.

>> Nash: Now they've accepted it.

>> Prokop: A new agreement, that's right.

>> Nash: And what's -- why did they like this one?

>> Prokop: Well, first and foremost -- the federal government likes the agreement.

They came to the table.

And all parties have agreed that this agreement fixes the problems of the usage of water in Southern New Mexico and West Texas.

>> Nash: Okay.

Well, let's get into how it fixes that.

So the settlement set out new rules for how New Mexico and Texas will share water.

Let's start with irrigation water.

How will the state split that up?

>> Prokop: That's right, so -- New Mexico and Texas are going to now have a -- they have agreed to a 5,743% split.

This is a little weedy, but it's because New Mexicans and Texas paid for the building of Elephant Butte Dam -- way back in 1906, and that's the percentage of New Mexican farmers, 57.

They paid for 57% of the dam and 43% in Texas.

So that's why the water is being split that way.

>> Nash: So New Mexico gets the lion's share.

It gets the majority.

>> Prokop: That's right.

>> Nash: Okay.

And how was it being shared before?

>> Prokop: It was also in this informal 57, 43 split.

But the problem was a lot of this is about handshakes and old handshakes and people disputing over who shook whose hand.

So now it's official.

It's written in the doctrine that this is how the water is going to be shared.

And also there are agreements for drought sharing.

If, say, New Mexico shorts Texas on the amount of water we're supposed to send at the state line, then we can ask to borrow it from, you know, we can ask these irrigation districts to ship it on using their canals across the state line.

>> Nash: All right.

And now what about groundwater?

You mentioned that that was a huge sticking point in this lawsuit over the years.

What has New Mexico agreed to change about how it pumps groundwater?

>> Prokop: Yeah.

So -- the hard part is that groundwater and irrigation water are so connected in this region of the river, when your water is flowing downhill, even above stream and underground.

And so when we're pumping the argument that Texas, of course, are making and the federal government is that when New Mexico was pumping groundwater, it was then taking water that was filling up in the river that would then fill up our depleted aquifers.

So these interconnected relationships between groundwater and irrigation water are kind of complex and also kind of simple if you're taking water, right, like people think you might be taking the water that's owed to them.

Anyway, so all this to say, is that New Mexico does have an agreement to reduce the amount of water being used in the lower Rio Grande.

That's by a number.

Its 18,200 acre feet by the next decade.

That's a lot of water.

>> Nash: So what would that mean locally?

How would that impact show up?

>> Prokop: Okay.

This is, this is something that the state has been working on for a while.

So after talking to the Interstate Stream Commission director Hannah Riesling White, you know, she mentioned that the state has worked on programs to fallow irrigation land, to buy out irrigation, to buy out irrigation rights, and trying to -- We're also trying to track how much water is being pumped for either irrigation farming or for smaller municipal uses.

>> Nash: So is it not known how much is being pumped?

>> Prokop: It's, there are good estimates, but you know, the state wants to measure this almost to the drop, right?

We're wanting more accuracy with every drop counting on the compact.

The state wants to know where every drop is going.

>> Nash: And where, where was every drop going, in terms of what it was pumping, the state.

If it has to reduce this by what, 18,000 acre feet.

Who█s going to feel the brunt of that?

>> Prokop: It's likely going to be agriculture.

Agriculture is the biggest user of water on the Rio Grande.

Generally speaking, even though, it's an important source of water for places like Albuquerque and El Paso.

They get their drinking water from there.

Not nearly as much pull as agriculture does.

>> Nash: Okay.

And you mentioned when you explain what the Rio Grande Compact is, that it's not just Texas and New Mexico.

Colorado has also been part of this compact.

How do they plug into this agreement, if at all?

>> Prokop: They're you know, they were present during the litigation.

They were mentioned in the lawsuit, which made it a little confusing, I think, for folks watching from the outside.

But the real dispute here was in southern New Mexico and Texas.

So, you know, Colorado is just one of the folks just trying to make sure that this river is split equitably because their farmers care about it, too.

>> Nash: Any other key agreements or new rules that New Mexicans should be aware of?

>> Prokop: Yeah, there there was this sort of no man's land of southern New Mexico before under the compact because everything put into Elephant Butte, which is 100 miles from the state line, about, was considered compact Texas, so southern New Mexico in some ways -- >> Nash: So once you got below Elephant Butte, you were in Texas.

>> Prokop: You were in Texas, according to the compact, not according to any math, but but now there is this agreement and acknowledgment of southern New Mexico through ensuring that 57, that 57, 43% split and also checking that what water is being delivered into Elephant Butte is going to be checked again at the El Paso state, like at the El Paso gauge, which is right at the Texas New Mexico state line.

>> Nash: Okay, so lining it up more with what the maps show, >> Prokop: What the maps show, and also how it's done.

We do that between New Mexico and Colorado.

>> Nash: Okay.

Well, in statements, both Governor Michelle Lujan Grisham and Attorney General Raul Torres said that reaching the settlement will save New Mexicans tons of money.

In the governor's words, billions of dollars for folks who maybe don't understand why this would save money.

Like what was the financial risk?

The liability risk at play?

>> Prokop: It's really hard to put a number on that at the very beginning.

Again, there was this concern of tens of thousands of acre feet, and there was this understanding that because of the way water law is done, the Supreme Court could agree to make New Mexico pay damages if they found New Mexico was at fault for taking Texas water.

So we wouldn't just have to pay back wet water, we would have to pay damages.

And that was an estimate of at one point in time in early 2013, over $1 billion.

We've spent between New Mexico and Texas.

We spent tens of millions of dollars in litigation.

>> Nash: I was going to ask that because, yes, it's a settlement is saving potential damage costs, but a lot has been spent over the years on this case, a 13 year case, including on outside legal counsel.

Can you break down what the what the bill has been for this?

>> Prokop: I need some more recent data.

But you know, we did we did track that there was at one point tens of millions of dollars being spent on outside counsel in New Mexico, and that Texas was spending way more.

Right.

Like sometimes, you know -- many times more than New Mexico on this case in terms of their outside counsel.

And there was a concern that because Texas has bigger coffers, could they outspend New Mexico on these kinds of things?

There's a couple of really important reasons why a settlement was so important, not just to the attorneys, but to all of the parties watching this case, because water is water, especially the Rio Grande has been fought over for a long time.

This section of the Rio Grande in particular.

And so they said that the best chance of staying out of court is by making a settlement.

And so even though the costs of attorneys are a lot, there is another concern that the costs of losing a case like this would be even higher for New Mexico.

>> Nash: So New Mexico really had to dig in if they were the David to Texas█ Goliath throughout this.

>> Prokop: That's definitely how it seemed.

And there were some real concerns from people who've watched this case over, it's, over, it's more than decade long tenure through the court that they were really concerned for what New Mexico would be on the hook for, wet water wise and money wise.

>> Nash: Alright, well, the settlement has been accepted it's in place.

Yeah.

What concerns, if any, remain?

>> Nash: The next question is what do you do when you need to stop pumping?

Who has to stop pumping?

Those questions remain.

All of Las Cruces is on groundwater, and even though there are older rights to agriculture, I think that those policy discussions are going to be a big element -- >> Nash: Do those happen at the municipal level?

Are we talking to the city council or the mayor of Las Cruces that would weigh in to something like that?

>> Prokop: The city of Las Cruces actually hired counsel to represent them in this case.

NMSU also has its own groundwater rights in the area, right for its own agriculture studies, but also the campus itself.

This is impacting entire regional crops like pecan growers had their own counsel in this case, and irrigators on chili and onion farms.

So there's a real question for what comes next in the lower Rio Grande.

There's not as much water.

>> Nash: Okay.

And then what about enforcement of these agreements if the state has agreed to this?

And obviously you're saying there's going to be some push and pull on the local level of who who has to stop pumping and who this is going to hit the hardest, but who oversees that people are actually following through with what they've agreed to.

>> Prokop: That's going to be the office of the State Engineer and the New Mexico Interstate Stream Commission.

These two water bodies are going to be really important and critical in implementing this stuff.

They've received, you know, a $22 million from the last legislative session to implement agreements on buying out land and putting in more monitoring in the lower Rio Grande.

They have $40 million from the federal government that they got through the Infrastructure -- Inflation Reduction Act, my apologies, to implement the settlement to pay farmers or buy water rights or do this kind of work, it's going to be expensive.

And the state says that they're willing to do the work on it.

>> Nash: Daniel Prokop, thank you so much.

>> Prokop: Thank you, Nash.

>>Jeff: Thanks again to Danielle Prokop and Nash for that discussion about the end of the 13 year dispute over Lower Rio Grande water.

In 2019, New Mexico sued the US Air Force for contaminating the water and land surrounding Holloman and Cannon Air Force bases with PFAS, more commonly known as Forever Chemicals.

The case is languishing at the Fourth Circuit Court of Appeals in South Carolina, but there is a new development on that cannon case since our conversation with Kenney first aired.

New Mexico and the Air Force have reached a verbal agreement whereby the military would pay for PFAS cleanup.

There have been speed bumps since that interview first ran too.

Nine Industry groups have since sued the environment department, claiming that new PFAS warning label requirements for consumer products amount to a First Amendment violation.

A hearing on the preliminary injunction is scheduled for August 27th.

For more on why state officials have taken action on the use of forever chemicals, here's that conversation with Secretary Kenney and Nash.

>> Nash: Secretary Kenney, thanks so much for joining us.

>> Kenney: Thank you for having me.

>> Nash: So before we jump into all these rules and regulations, I do want to take a moment to just make sure that everyone watching and that we here at the table have kind of a shared understanding of what we're talking about.

So what are PFAS?

What are these so-called forever chemicals?

>> Kenney: Yeah, these are man-made chemicals that came about in the 1960s and have been used in many products that we -- you know, enjoy every day.

But really, what are -- chemicals that are really tough to break apart.

They move through our bodies, they move through the environment, and they're hard to get rid of.

They're hard to destroy.

>> Nash: That's the forever -- piece.

>> Kennet: That's the forever piece, yeah.

And it goes back to the chemistry of what these 19,000 chemicals look like.

They're really hard to break the bonds, but they've been in everything from, you know, carpet cleaners and stain resistant clothing to paints, cookware, all sorts of consumer products.

So they're all around us and they're hard to get rid of.

And then they have adverse health effects as well -- >> Nash: Yeah, so what are the health risks for exposure to these things?

>> Keney: Yeah, you know, we can talk about -- they can cause everything from at the worst end of the spectrum, types of cancers.

They're linked with everything from kidney cancer, liver cancer colorectal cancer.

They can cause reproductive issues in both men and women.

They can also affect people like high cholesterol or preeclampsia, high pressure, blood pressure in pregnant women.

So the range is huge.

>> Nash: And is that because we're ingesting them?

>> Kenney: Yep.

That's exactly it.

So the most common route of -- exposure would be through drinking water or ingesting them that way food or drinking water.

But there's been studies done to look at whether, like, there's a dermal contact or an inhalation contact.

You know, if you get them on your skin or you inhale them through respiration.

>> Nash: Okay, and can you characterize kind of the extent of contamination of PFAS here in New Mexico?

What's the scope of things locally here?

>> Nash: Yeah, it's significant.

And, there's really two areas are two ways that we encounter PFAS in terms of consumer products being one.

So things we bring into our home and interact with the other would be, if you live around a federal facility, like, a base or maybe a national lab, that there's increased levels of PFAS in those environments based on the history of use and the lack of regulation at the same time.

So those are kind of the two ways we see PFAS in the environment, in people, in plants and in animals.

>> Nash: And when we're looking at the Air Force spaces, this is really rooted in use of a particular kind of firefighting foam that's used on fires started by flammable liquids, like like fuel fires, for instance.

Yeah?

>> Kenney: Yeah So the firefighting foams, they're used to put out like diesel or gasoline type fires, they're not used for wildfires.

They're used for petrochemical or petroleum based fires >> Nash: That you might find in an air force base.

>> Kenney: Exactly, exactly.

For emergency purposes, training purposes or even spills, which we've seen in Cannon Air Force Base >> Nash: How do we know the extent of contamination across the state?

>> Kenney: So are you talking to airforce bases or just broadly across the state?

>> Nash: I suppose both kind of the broader contamination landscape in the state.

But you you were talking specifically about the Air Force base.

So what do we know about what what that spill has meant around cannon around Holloman Air Force bases?

>> Kenney: Yeah.

So around the military bases back in 2015, 16, 17, they themselves were directed by Congress to look at the extent of contamination related to PFAS.

Around that time, we started to see that Cannon and Holloman had significant levels of PFAS compared to other bases throughout the country.

And that was reported to us by the Air Force.

But when it comes to drinking water around the rest of the state, or PFAS in the rest of the environment throughout New Mexico, we've been actively looking at drinking water, doing stream surveys, looking at landfills and just trying to quantify what the risk exposure could be.

>> Nash: And your department has been tackling accountability around these spills in a number of different ways, and I want to take them kind of one at a time, starting with a new rule that the Environmental Improvement Board adopted just a couple of weeks ago.

It changes the way your department is able to regulate these firefighting foams that contain PFAS.

So what does the rule do?

>> Kenney: Yeah, So the rules a big step forward in preventing future PFAS exposures.

So one of the first things it does is it sets out a statewide inventory.

So, you know, we don't know where PFAS is in terms of fire suppression systems- >> Nash: Like who's using these phones.

>> Kenney: Yeah, exactly.

Like small regional airports.

Could it be used in, you know, municipal and state government?

We don't believe it is.

But could it be sure?

Right.

It's been around since the 60s.

We don't know who's procured it.

It could be used in other federal facilities.

National labs, as I mentioned.

So the rule for sets out a requirement to conduct a periodic inventory.

Second, it prohibits the use of these firefighting foams for anything other than an emergency.

So you can't train with them anymore.

They can't be a neglected fire fire suppression system that suddenly released.

And we had no idea.

>> Nash: What's the bar for an emergency.

>> Kenney: Think of, you know, what it's designed to do.

It's designed to put out fires that are diesel based or gas based so.

An emergency would be in that category, you know, a plane crash or something to that effect.

And then third, and most importantly, it requires that you clean up in in compliance with our hazardous waste requirements.

So if you deploy it even for emergency purposes, you still have to clean it up.

You can't just deploy it and leave it in the ground.

>> Nash: You have tried to force cleanup of these spills and accountability through fines, repeated fines of Cannon Air Force Base.

You've sued the federal government over this matter.

This new rule, it.

How does it change the avenues that are available to you for accountability?

>> Kenney: Yeah.

And I always like to make the point that we have sued the military for their releases after they suit us.

And I always think it's important to remind New Mexicans that our U.S.

government has sued New Mexico and filed a lawsuit against us in 2019, saying that we don't have the authority to regulate PFAS as a hazardous waste.

Well, guess what we do.

Our legislature and the Environmental Improvement Board have ruled in our favor and created these rules.

So maybe back to your question.

This new rule gives us the authority to not just go directly to federal court or state court.

It gives us the administrative pathway to go file a complaint against somebody who releases PFAS and require them to clean it up in an administrative setting.

It's a lower bar or it's a lower it's a lower court action, if you will.

And it's where 90% of New Mexico environment department spends its time is in these administrative proceedings.

>> Nash: Do you think it will be more effective than your past efforts at requiring cleanup?

>> Kenney: I don't know that it will be more effective when it comes to the military.

The federal government has been one of the most recalcitrant, recalcitrant polluters in the state of New Mexico.

And I think the they will still be recalcitrant.

But what the difference is, is that the Department of Justice said to New Mexico, the federal Department of Justice said to New Mexico, you don't have the authority to regulate, so we're not going to clean it up.

We now have that authority.

So every time they make a legal argument, our legislature, the department, our governor has rallied around that argument and solved that problem.

So there's there's really no where left to hide from a legal perspective.

So we're hoping that that now paints them into the corner, that they actually do the right thing.

>> Nash: And in terms of the lawsuit, in addition to the federal government suing New Mexico, you all have sued the military.

What's the status of that lawsuit?

>> Kenney: Yeah.

So that lawsuit where the state has sued the military was combined with a lot of lawsuits.

It's it's in South Carolina, what is called the Fourth Circuit.

And we were at the front of the line for that, meaning the judge said, we're going to spend time working on the New Mexico case.

And through a series of, you know, very kind of frustrating decisions, New Mexico got moved to the back of the line, and now they're working on essentially the liability of Dow and 3M and all the other chemical companies.

>> Nash: So it's going to be sitting there a while.

>> Kenney: You know, we've said a while to begin with, and we're trying everything we can to get out of either to reprioritize our case to the front of the line in front of like 400 other cases.

>> Nash: Move it.

>> Kenney: Exactly.

We want to move it out of South Carolina and back to New Mexico.

>> Nash: Okay.

Is there any actions that your department has taken so far that is newly available to you?

>> Kenney: Under the new rules?

>> Nash: Yeah.

>> Kenney: Yeah, So those new rules will be published soon.

I mean, yes, we have them available to us and they have to be published next in the state Bulletin.

But the first thing we're going to do is get this inventory, get a sense of where PFAS is around the state.

>> Nash: Will your department be taking the inventory?

>> Kenney: Oh, absolutely.

Yeah.

We'll require it to be submitted to us.

We'll look to see where the risk is.

And then this is the genesis of maybe where we do like a buyback program.

Like, think of like a regional airport that maybe has PFAS but wants to get rid of it.

They have other ways to suppress fires, or maybe they don't need as much as they have.

So, you know, things that other states have done is to a buy back program where they safely bring it back and then send it out for destruction.

So it gives us the authority to start making or the ability to start making better decisions.

>> Nash: And will that start this year?

>> Kenney: Yeah.

>> Nash: Okay.

>>Jeff: Thanks to everyone who helped us make the show.

We'll be back next week with fresh news and analysis and hopefully a little more wear and tear on our wiper blades and raincoats for New Mexico PBS, I'm Jeff Proctor.

Funding for New Mexico in Focus is provided by viewers like you.