After fierce debate, water district reaches nonbinding agreement with City of Presidio

"This isn’t my board," water district chairman Trey Gerfers said last week during fierce debate in Presidio city council. "It’s not Marfa’s board. It’s our board.”

PRESIDIO — After months of planning and discussion, last week Presidio County Underground Water Conservation District reached a memorandum of understanding with the City of Presidio. It’s the first step in a process that could ultimately see Presidio give the water district oversight over local water.

The memorandum is nonbinding and simply asks that Presidio work in “good faith” to reach a more formal agreement with the district. If they can agree on terms like water volume within two years, they’ll finalize a deal during the 2021 Texas legislative session.

After almost an hour of debate and questions from councilmembers, the vote passed 3-1.  Councilman Antonio Manriquez voted against, citing what he said was a lack of information and specifics in the memorandum. (Manriquez did not respond to requests for comment by press time.)

Supporters countered that the memorandum was left intentionally light on specifics until Presidio and water officials work to reach a more finalized agreement. Instead, the document was merely a “nonbinding framework to get the ball rolling,” Chairman Trey Gerfers told city council. With a dedicated team for negotiations, the goal is also to keep city and county officials focused on water policy.

Presidio Mayor John Ferguson — who has vocally supported the memorandum — echoed this viewpoint during council debate last week, where he encouraged the city to pass the memorandum.

“I think we need more information on this,” he said of water district efforts to protect city water. “And I think the way we do it is to move the process forward.”

PCUWCD plans to present a memorandum to Marfa next, where water officials are already — so to speak — testing the waters. At a separate city council meeting last week, Marfa agreed to let the district start monitoring a city well.

Chairman Gerfers has told Presidio officials that the water district wanted to approach Presidio first because Presidio is the largest and most important city in the county — and to help overcome perceived rivalries between the Marfa and Presidio areas.

“We’ve been trying to build trust,” he said at last week’s council meeting. “We know that there is sort of a history of mistrust between the north and the south county.”

These efforts are part of an ongoing push by the water district to safeguard water supplies in Presidio County to the fullest extent of the law. Officials like Gerfers have warned of coming challenges to local water supplies, including population growth and the oil-and-gas industry. But PCUWCD has no authority to monitor or conserve water in Marfa or Presidio because of a 2011 rule called the “Midland exemption,” which allows small cities exemptions from water district oversight.

PCUWCD sees those exemptions as a weak spot to state water protections, and it wants Presidio and Marfa to give them up and join the district. They say dozens of cities in Texas have voluntary opted out of the exemption. At a meeting last month in Presidio, the district pitched their plan to city officials, describing it as an “insurance policy,” as The Big Bend Sentinel previously reported.

Presidio City Council considered the memorandum at a council meeting later in October but decided against taking action — with Rod Ponton, city attorney for Presidio, saying he wanted to get more information on the memorandum and its implications. Ponton hoped a lawyer for the water district would reach out for him but never heard from one, he told The Big Bend Sentinel.

Those meetings set the stage for last week’s vote, where Ponton came out in strong opposition to the memorandum.

Portraying the move as a power grab by Marfa, he recommended that Presidio “just leave the status quo” alone.

“From their perspective, it’s just good regulatory thinking,” he said. “But from my perspective, it’s an unelected board in Marfa trying to control Presidio’s own water supply.” He said that, if Presidio grew and needed more water, city officials might have to “go to Marfa and ask the board in Marfa for permission to do that: to pump water from own wells.”

“I can understand why Mr. Gerfers wants to have Presidio join its district because then the district could charge fees to Presidio,” he said. “They could have more some more money in their budget. And they could have more control.”

Water officials dispute Ponton’s characterizations. In his own statements, Gerfers said PCUWCD wasn’t a Marfa organization trying to take control of Presidio water.

“First of all,” he said, “this isn’t my board, and it’s not Marfa’s board. It’s our board.” He noted that Vicky Carrasco, a member of PCUWCD, lives in Presidio.

Gerfers again stressed that Presidio would be part of the negotiations around volume and fees. And he said PCUWCD was unelected because under state law, officials are only elected if they’re imposing a tax.

“I don’t think anybody wants a new tax,” he said.

He noted that the water district would add a seat for a representative of Presidio city. “It’s not like y’all are being controlled,” he said. “You’re actually gaining a voice in countywide water [issues].”

“There’s a big world out there,” he added. “It’s getting closer to us every day. And so we can either get all of the groundwater resources in the entire county under the same protection — with an equal voice for each city on the board — or we can just say, ‘It’s great the way it is.’”

Later, Ponton pushed back again. “If you don’t want to control the city’s water and you don’t want to control fees on the city, then why aren’t you just happy with the status quo?” he said.

“The status quo is not secure,” Gerfers said. “It’s just not stable.”

Vicky Carrasco joined the debate. “I’m a member of the board, and there seem to be several misunderstandings here,” she said. “Three of the members [of the currently five-member water district] at some point have lived in Presidio. I’m one of them.”

If PCUWCD tried to regulate Presidio water while the city still had its exemption, the district could face legal challenges, she warned.

“What is the problem we have today?” Ponton said. “There’s no fracking in Presidio.”

“Yes there is,” Gerfers said. “There is fracking in Presidio County, sir, and there are leases signed being sold right now. This idea that I don’t see it, so it’s not a problem — I don’t think that’s a smart approach.”

Council Manriquez, who voted against, expressed skepticism about the open-ended document. But many of the questions from city council, along with City Attorney Ponton, instead probed whether Marfa and Presidio would be on equal footing during the discussions.

Even Councilman Irvin Olivas, who voted for the resolution, stressed that it was important for Presidio to feel like an active participant in the discussions.

“I know that’s one of my concerns, as a citizen of Presidio,” he told council. “Everything to do for the county, we have to go to Marfa for. And this would be something different.”

In a follow-up email on Tuesday, Olivas said that organizations and committees in Marfa sometimes “require citizens of Presidio to travel on a two-hour round trip to participate in them.”

He had voted for the memorandum, he said, in part because it was nonbinding and required a 50/50 groundwater district meeting share between Marfa and Presidio. (All of the meetings related to the Presidio negotiations will happen in Presidio, Gerfers said.) Olivas cited the Helios Energy fracking operation as reported in this paper as one reason to worry about local water.

As part of the nonbinding agreement, Presidio will send city representatives to meet with PCUWCD. Council chose Presidio Mayor John Ferguson, City Administrator Joe Portillo and City Attorney Rod Ponton.

In a follow-up interview with The Big Bend Sentinel, Ponton reiterated his skepticism for the nonbinding agreement — describing the vote as “putting the cart before the horse.”

Ponton said he was “happy to meet with anybody at any time in any place” to discuss Presidio water issues — and as a Presidio representative under the memorandum, he no doubt will have plenty more such meetings. But he stressed that “the needs in Presidio are substantially different than the needs in Marfa. Presidio’s pro-growth, Marfa’s anti-growth.”

“How can I put this gently,” Ponton said. “I haven’t seen Trey Gerfers come to Presidio except for this issue.”

Supporters, though, criticized Ponton for his emphasis on Marfa.

“I dislike characterizing things in this Presidio versus Marfa” way, Mayor Ferguson said at the council meeting. “I don’t think this underground water district is an attempt for Presidio to be under the rule of Marfa.”

In an interview with The Big Bend Sentinel on Monday, water district chairman Gerfers also took this view.

“He was very quick to depict the district in a very unfavorable light,” Gerfers said of Ponton. “I don’t know whose interest that serves. I really don’t see why that was the tactic.”

PCUWCD now plans to try the same approach in Marfa in hopes of also reaching another memorandum of understanding. But for Gerfers, the debate was a reminder of how far the district still has to go with negotiations and winning the trust of residents.

Local water officials have previously tried to get Marfa and Presidio to join the district’s oversight, discussing the issue with Marfa city officials as early as 2011. Those efforts went nowhere.

“We’re not home yet,” Gerfers said. “I don’t think anyone is resting on their laurels.”