WATER QUALITY COMMISSION PRODUCED WATER RULES

HB0207

HOUSE BILL 207

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Cathrynn N. Brown
and
Jimmy G. Mason
and
Mark B. Murphy

and
Jonathan A. Henry
and
Elaine Sena Cortez

AN ACT

RELATING TO NATURAL RESOURCES; REQUIRING THE WATER QUALITY
CONTROL COMMISSION TO PROMULGATE RULES ALLOWING FOR SPECIFIED
USES OF TREATED PRODUCED WATER.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1.
Section 74-6-4 NMSA 1978 (being Laws 1967,
Chapter 190, Section 4, as amended) is amended to read:

"74-6-4. DUTIES AND POWERS OF COMMISSION.--The
commission:

A. may accept and supervise the administration of
loans and grants from the federal government and from other
sources, public or private, which loans and grants shall not be
expended for purposes other than those provided;

B. shall adopt a comprehensive water quality
management program and develop a continuing planning process;

C. shall not adopt or promulgate a standard or rule
that exceeds a grant of rulemaking authority listed in the
statutory section of the Water Quality Act authorizing the
standard or rule;

D. shall adopt water quality standards for surface
and ground waters of the state based on credible scientific
data and other evidence appropriate under the Water Quality
Act. The standards shall include narrative standards and, as
appropriate, the designated uses of the waters and the water
quality criteria necessary to protect such uses. The standards
shall at a minimum protect the public health or welfare,
enhance the quality of water and serve the purposes of the
Water Quality Act. In making standards, the commission shall
give weight it deems appropriate to all facts and
circumstances, including the use and value of the water for
water supplies, propagation of fish and wildlife, recreational
purposes and agricultural, industrial and other purposes;

E. shall adopt rules to prevent or abate water
pollution in the state or in any specific geographic area,
aquifer or watershed of the state or in any part thereof, or
for any class of waters, and to govern the disposal of septage
and sludge and the use of sludge for various beneficial
purposes. The rules governing the disposal of septage and
sludge may include the use of tracking and permitting systems
or other reasonable means necessary to assure that septage and
sludge are designated for disposal in, and arrive at, disposal
facilities, other than facilities on the premises where the
septage and sludge is generated, for which a permit or other
authorization has been issued pursuant to the federal act or
the Water Quality Act. Rules may specify a standard of
performance for new sources that reflects the greatest
reduction in the concentration of water contaminants that the
commission determines to be achievable through application of
the best available demonstrated control technology, processes,
operating methods or other alternatives, including where
practicable a standard permitting no discharge of pollutants;

F. in making rules, shall give weight [
it
]
the
commission
deems appropriate to all relevant facts and
circumstances, including:

(1) the character and degree of injury to or
interference with health, welfare, environment and property;

(2) the public interest, including the social
and economic value of the sources of water contaminants;

(3) the technical practicability and economic
reasonableness of reducing or eliminating water contaminants
from the sources involved and previous experience with
equipment and methods available to control the water
contaminants involved;

(4) the successive uses
of water
, including
domestic, commercial, industrial, pastoral, agricultural,
wildlife and recreational uses;

(5) feasibility of a user or a subsequent user
treating the water before a subsequent use;

(6) property rights and accustomed uses; and

(7) federal water quality requirements;

G. shall assign responsibility for administering
[
its
]
the commission's
rules to constituent agencies to
[
assure
]
ensure
adequate coverage and prevent duplication of
effort. To this end, the commission may make such
classification of waters and sources of water contaminants as
will facilitate the assignment of administrative
responsibilities to constituent agencies. The commission shall
also hear and decide disputes between constituent agencies as
to jurisdiction concerning matters within the purpose of the
Water Quality Act. In assigning responsibilities to
constituent agencies, the commission shall give priority to the
primary interests of the constituent agencies. The department
shall provide technical services, including certification of
permits pursuant to the federal act, and shall maintain a
repository of the scientific data required by the Water Quality
Act;

H. may enter into or authorize constituent agencies
to enter into agreements with the federal government or other
state governments for purposes consistent with the Water
Quality Act and receive and allocate to constituent agencies
funds made available to the commission;

I. may grant an individual variance from a rule of
the commission whenever it is found that compliance with the
rule will impose an unreasonable burden upon any lawful
business, occupation or activity. The commission may only
grant a variance conditioned upon a person effecting a
particular abatement of water pollution within a reasonable
period of time. A variance shall be granted for the period of
time specified by the commission. The commission shall adopt
rules specifying the procedure under which variances may be
sought, which rules shall provide for the holding of a public
hearing before a variance may be granted;

J. may adopt rules to require the filing with the
commission or a constituent agency of proposed plans and
specifications for the construction and operation of new sewer
systems, treatment works or sewerage systems or extensions,
modifications of or additions to new or existing sewer systems,
treatment works or sewerage systems. Filing with and approval
by the federal housing administration of plans for an extension
to an existing or construction of a new sewerage system
intended to serve a subdivision, solely residential in nature,
shall be deemed compliance with all provisions of this
subsection;

K. may adopt rules requiring notice to the
commission or a constituent agency of intent to introduce or
allow the introduction of water contaminants into waters of the
state;

L. shall specify in rules the measures to be taken
to prevent water pollution and to monitor water quality. The
commission may adopt rules for particular industries. The
commission shall adopt rules for the dairy industry and the
copper industry. The commission shall consider, in addition to
the factors listed in Subsection F of this section, the best
available scientific information. The rules may include
variations in requirements based on site-specific factors, such
as depth and distance to ground water and geological and
hydrological conditions. The constituent agency shall
establish an advisory committee composed of persons with
knowledge and expertise particular to the industry category and
other interested stakeholders to advise the constituent agency
on appropriate rules to be proposed for adoption by the
commission. The rules shall be developed and adopted in
accordance with a schedule approved by the commission. The
schedule shall incorporate an opportunity for public input and
stakeholder negotiations;

M. may adopt rules establishing pretreatment
standards that prohibit or control the introduction into
publicly owned sewerage systems of water contaminants that are
not susceptible to treatment by the treatment works or that
would interfere with the operation of the treatment works;

N. shall not require a permit respecting the use of
water in irrigated agriculture, except in the case of the
employment of a specific practice in connection with the
irrigation that documentation or actual case history has shown
to be hazardous to public health or the environment, or for the
use of produced water;

O. shall not require a permit for applying less
than two hundred fifty gallons per day of private residential
gray water originating from a residence for the resident's
household gardening, composting or landscape irrigation if:

(1) a constructed gray water distribution
system provides for overflow into the sewer system or on-site
wastewater treatment and disposal system;

(2) a gray water storage tank is covered to
restrict access and to eliminate habitat for mosquitos or other
vectors;

(3) a gray water system is sited outside of a
floodway;

(4) gray water is vertically separated at
least five feet above the ground water table;

(5) gray water pressure piping is clearly
identified as a nonpotable water conduit;

(6) gray water is used on the site where it is
generated and does not run off the property lines;

(7) gray water is applied in a manner that
minimizes the potential for contact with people or domestic
pets;

(8) ponding is prohibited, application of gray
water is managed to minimize standing water on the surface and
to ensure that the hydraulic capacity of the soil is not
exceeded;

(9) gray water is not sprayed;

(10) gray water is not discharged to a
watercourse; and

(11) gray water use within municipalities or
counties complies with all applicable municipal or county
ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978;

P. shall coordinate application procedures and

funding cycles for loans and grants from the federal

government and from other sources, public or private, with

the local government division of the department of finance

and administration pursuant to the New Mexico Community

Assistance Act;

Q. shall adopt rules to be administered by the
department for the discharge, handling, transport, storage,
recycling or treatment for the disposition of treated produced
water [
including disposition in road construction maintenance,
roadway ice or dust control or other construction, or in the
application of treated produced water to land
] for activities
unrelated to the exploration, drilling, production, treatment
or refinement of oil or gas.
No later than December 31, 2026,
the commission shall adopt rules that establish permits
allowing for the following uses of treated produced water:

(1) pilot projects;

(2) industrial use;

(3) mixing water used in the production of
hydraulic cement concrete;

(4) closed-loop geothermal projects;

(5) hydrogen production;

(6) commercial use;

(7) land applications in areas located more
than one hundred feet from surface waters and more than one
hundred feet above ground water;

(8) irrigation of industrial crops;

(9) use in road construction or maintenance in
areas located more than one hundred feet from surface waters
and more than one hundred feet above ground water;

(10) use in other construction in areas
located more than one hundred feet from surface waters and more
than one hundred feet above ground water;

(11) use in roadway ice and dust control in
areas located more than one hundred feet from surface waters
and more than one hundred feet above ground water;

(12) discharge into surface or ground water;
and

(13) restoration or ecological use;

R. shall adopt rules to be administered by the
department for surface water discharges [
including
]
as follows
:

(1) for discharges from point sources, the
rules shall not require a permit for a point source discharge
for which a permit is issued under Section 402 of the federal
Clean Water Act or the New Mexico Pollutant Discharge
Elimination System Act; provided that in adopting rules related
to this paragraph, in addition to the factors to be considered
under Subsection F of this section, the commission may:

(a) identify exemptions from a discharge
permit requirement when water contaminants in discharges are
subject to effective and enforceable water quality requirements
in a state or federally issued permit, unless there is a hazard
to public health or the environment that may result or an
applicable state water quality standard will not be achieved;
and

(b) consider requirements for permits
and general permits that are consistent with the requirements
of similar permits issued under Section 402 of the federal
Clean Water Act; and

(2) for discharges of dredged or fill
material, the rules shall not require a permit for discharges
of dredged or [
filled
]
fill
materials for which a permit or
authorization is issued under Section 404 of the federal Clean
Water Act; provided that the rules shall include avoidance and
minimization to the maximum extent practicable of adverse
impacts to wetlands, streams and other aquatic resources and
may require compensatory mitigation for unavoidable adverse
impacts that remain after appropriate and practicable avoidance
and minimization measures have been achieved; and provided
further that in adopting rules related to this paragraph, in
addition to the factors to be considered under Subsection F of
this section, the commission may:

(a) identify exemptions from a discharge
permit requirement when a discharge is subject to effective and
enforceable water quality requirements in a state or federally
issued permit, unless there is a hazard to public health or the
environment that may result or an applicable state water
quality standard will not be achieved; and

(b) consider the requirements for
permits and general permits that are consistent with the
requirements of similar permits issued under Section 404 of the
federal Clean Water Act;

S. may adopt rules to be administered by the
department for the state to respond to, investigate and
remediate water pollution and contamination in soil and soil
vapor for the protection of human health and the environment;
and

T. shall adopt rules to be administered by the
department to govern the transfer and use of treated domestic
wastewater for potable reuse. The rules may specify a standard
of performance, including log reduction for pathogen removal,
critical control points, barriers and the greatest reduction in
the concentration of water contaminants and pathogens that the
commission determines to be achievable through application of
the best available demonstrated control technology, processes,
operating methods or other alternatives, including, where
practicable, a standard permitting no risk to human health.
The rules governing the potable reuse of domestic wastewater
may include the use of existing permitting systems or create
new permitting rules that include the means necessary to
[
assure
]
ensure
that potable reuse projects are conducted in a
manner that is directly protective of human health."

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