Our Water Matters

A groundwater mystery continued…

Faithful readers of “Our Water Matters” will recall that County Attorney Rod Ponton has been seeking to defund the groundwater district here in Presidio County. At a budget workshop last July, Mr. Ponton announced –– with no warning or other sign of good faith –– that he had found two attorney general opinions affirming that it was illegal for the county to fund the groundwater district. Mr. Ponton also has never divulged the source of these legal opinions, merely stating that “someone” from the county gave them to him.

Fortunately for all of us, the groundwater district has a very sharp attorney, Mike Gershon, who parsed the details of these AG decisions and relayed his findings in a letter to the Presidio County Underground Water Conservation District. Mr. Gershon’s analysis found that one of these decisions, involving Kinney County, no longer applies because the Legislature changed the law back in 2015. Meanwhile, the other legal decision deals with Mills County and an entity known as Fox Crossing Water District, which no longer exists. The term “water district” may seem like the same thing as a groundwater district. But my own sleuthing has revealed that Fox Crossing functioned more like a utility and provided water and wastewater hookups in Mills County. In a nutshell, the county attorney’s assertions are based on one very old legal decision that is now moot and another, even older one that doesn’t involve a groundwater district. So how do we resolve the crisis precipitated by Mr. Ponton?

In his letter, Mr. Gershon points the way forward in a 2019 case involving Starr County. The groundwater district there had failed to fulfill its obligations to the neighboring groundwater districts, including the payment of its fair share to consultants for completing several studies and reports required by state law. These groundwater districts went to the Texas Commission on Environmental Quality (TCEQ) and filed a petition: Starr County must either reform its groundwater district or disband it. In an unprecedented effort, the Starr County Commissioners Court, Starr County attorney, and Starr County Groundwater Conservation District in collaboration with the governor’s office, the local state senator and local state representative hammered out a plan with the TCEQ. The county would continue funding of the groundwater district until the district could hold a taxing election. Fully aware of the pitfalls of asking the voters for a new tax, the commissioners wisely agreed to a “tax swap” in which the county would decrease its tax revenues to make up for the increase in new taxes levied by the groundwater district. The hope was that voters would be willing to agree to a new tax if their net property taxes did not go up. The ink was barely dry on the agreement when the coronavirus hit in early 2020 and the taxing election was delayed until 2022. As Starr County emerges from the ravages of the past two years, the groundwater district has again decided to postpone its taxing election until further notice.

When I presented these facts to the commissioners court last week, all of the commissioners present agreed on the importance of getting this right. Commissioner Bentley stated that “our water is too important to rush this.” Commissioner Aranda affirmed that “now is not the time” for a taxing election. And Commissioner Knight said that he would be amenable to a tax swap. Mr. Ponton suggested that the groundwater district come up with a plan that the commissioners court could approve and warned that “eventually the district will have to become taxing.”

Although Mr. Ponton has a valid point, his sudden, urgent need to save the county a tiny fraction of its overall revenues ($52,000 to the groundwater district out of a $7 million annual budget) doesn’t seem rational. His poorly researched legal arguments are also cause for concern. Perhaps Mr. Ponton is simply too distracted with his work for the other six or seven public entities he represents to focus appropriately on the needs of Presidio County. It should be clear to anyone that a taxing election in the current economic climate would likely fail, effectively eliminating the local control of our groundwater. 

Trey Gerfers is a San Antonio native and serves as board chairman of the Presidio County Underground Water Conservation District. He earns his living as a translator of technical documents from German to English for the German and Swiss pharmaceutical and medical-science industries. Trey has lived in Marfa since 2013.