According to the American Geosciences Institute, “Most oil- and gas-bearing rocks also contain water. When the oil or gas is extracted from these rocks, the water comes out too. This ‘produced water’ is a byproduct of almost all oil and gas extraction, though the amounts of produced water can vary widely.” In 2023, the Texas Produced Water Consortium reported that the Permian Basin alone is generating upwards of 3.9 billion barrels, or over 168 billion gallons, of produced water annually. That’s enough water to fill more than 250,000 Olympic-sized pools every single year.
With so much produced water available, many are evaluating the possibility of treating and putting this waste product to other beneficial uses, such as agricultural irrigation, aquifer recharge, and surface water discharge. But, according to Texas Tech law professor Amy Hardberger, “Data gaps exist in the current understanding of the pollutants of concern contained in produced water and the associated public health and environmental risks for each type of reuse.”
In her paper titled “The Challenges and Opportunities of Beneficially Reusing Produced Water” published in the Duke Environmental Law and Policy Forum, Hardberger explains that the primary pollutants of concern in produced water include “salt content, oil and grease, hydrocarbon related compounds, toxic compounds used in the hydraulic fracturing process, toxic compounds dissolved from natural deposits in the formation, and naturally occurring radioactive materials (NORM).” She goes on to point out that “treatment is often very difficult, not possible, or cost-prohibitive” and “neither tests nor risk levels exist for many of the constituents of concern.”
Hardberger cautions that “few, if any, regulatory standards are present to manage the human health and environmental risks associated with the reuse of produced water” and “reuse of produced water outside the oil and gas sector is not currently informed with adequate data.” Part of the problem lies in the “reporting loopholes [that] limit the ability to fully understand fracking fluids’ chemical composition.” In fact, the different chemicals that make up each company’s hydraulic fracturing fluids are “subject to trade secret protections.” Even if they can be identified, “the risks of many of these chemicals” are “often unknown.”
Regardless of the risks, “Treated produced water for agriculture is an oft-promoted reuse scenario,” because agriculture is the sector that uses the most water. “However, this use creates many potential exposure pathways,” according to Hardberger, and “most chemicals of concern … in produced water have no regulations set for acceptable exposure concentrations in food or residues on the surface of produce, nor are there safe consumption standards set for fruits, vegetables, or grain.”
Other scenarios involve reusing produced water to recharge depleted aquifers or augment diminished surface waters in the arid regions where most hydraulic fracturing takes place. But caution is warranted here, as well, says Hardberger, because “heavy metals and other trace elements, which are common in produced water, do not biodegrade and accumulate in the environment … and, if groundwater becomes contaminated, it is difficult to remediate.”
Another thorny issue with produced water involves its status under the law. Up to now, produced water has been categorized as waste. But “a transition away from disposal towards beneficial reuse … triggers a categorization change of the water from a waste to a commodity” prompting a reevaluation of the implications of such a redesignation. “Regulatory decisions related to waste disposal predate the widespread production of shale gas and any contemplation that the resulting wastewater might be utilized in other sectors. Because widespread consideration of these uses is recent, it is unclear how existing rules might apply in reuse situations.”
The 1976 Resource Conservation and Recovery Act (RCRA) is the main federal law regulating waste disposal. It is intended to provide “effective cradle-to-grave management of solid and hazardous waste that is protective of human health and the environment,” writes Hardberger. “In 1988, the EPA codified rules on oil and gas production wastes, including produced water, to exempt them from RCRA requirements.” The idea was to “avoid a chilling effect” on oil and gas production that would have been created “by the additional time and expense associated with regulatory waste disposal. The EPA supported its decision with an assessment that state regulations related to disposal were sufficient to protect human health and the environment.” But the “programs, on which the EPA relied, only apply to produced water reuse in a very limited capacity, if at all.” In other words, not only is produced water insufficiently covered by current federal regulations, it also escapes the level of scrutiny it merits if it is to be put to other uses. In Hardberger’s analysis, “It is antithetical to claim that produced water is part of the solution to fresh water scarcity challenges while still enjoying a regulatory exemption that presupposes a hazardous waste designation.”
Yet several states “already reuse or discharge produced water in a limited capacity,” reflecting, “a range of comfort levels with implementation,” according to Hardberger. Perhaps the best example is New Mexico, which is working closely “with the EPA to facilitate collaboration and ensure the development of reuse strategies protective of human health and the environment” while seeking to “foster resource conservation and economic opportunity.” The deliberate, science-based approach of New Mexico “presents a model for other states.”
Recent fracking-related disasters in the Permian Basin, including sinkholes, geyser-like blowouts, and a growing toxic lake that could soon submerge part of Highway 1053 north of Fort Stockton, are increasing the pressure on industry to reduce the volumes of produced water it injects back into the ground. However, in the wise words of Hardberger, “Repurposing produced water without a proper understanding of … the potential impacts may solve one problem while creating many more.”
Visit https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1408&context=delpf to read the full article.
Trey Gerfers serves as general manager of the Presidio County Underground Water Conservation District. A San Antonio native, he has lived in Marfa since 2013 and can be reached at tgerfers@pcuwcd.org.