September 21, 2022 335 PM
Some unfinished business
The Presidio County Commissioners Court recently approved an interlocal cooperation agreement with the Presidio County Underground Water Conservation District. The agreement establishes the framework for the groundwater conservation district to hold a taxing election next year and addresses a bizarre turn of events here in Presidio County.
As readers of “Our Water Matters” will recall, Presidio County Attorney Rod Ponton has been seeking to defund the groundwater district here in Presidio County since mid-2021, when he announced without warning that it was illegal for the county to fund the groundwater district. With no path forward proposed by the county attorney, the groundwater district sought the advice of its attorney, Mike Gershon of Lloyd Gosselink in Austin, who parsed the details of the attorney general decisions Mr. Ponton used as the basis for his assertions. Mr. Gershon found that one of the decisions was no longer applicable because the Legislature had since changed the law, and the other, even older decision did not involve a groundwater district.
Despite Mr. Ponton’s poorly researched legal arguments, his underlying assertion remains sound. Each time a groundwater district is proposed, the Legislature in Austin passes what is known as “enabling legislation,” i.e. an act that enables the creation of a groundwater district. The enabling legislation of the Presidio County Underground Water Conservation District from 1993 gives the groundwater district the power to levy an ad valorem (property) tax not to exceed $0.05 per $100 of assessed valuation. According to Teresa Todd, who was Presidio County Attorney in 1999 when the measure to create the district was passed by the voters, the tax question was left off the ballot because there was a feeling that “it’ll never pass.” The county simply funded the groundwater district and “that was that.” The status quo seemed to be working fine with the groundwater district receiving about $52,000 a year from an annual county budget of $7 million. But thanks to Mr. Ponton’s insistence, the status quo will have to be abandoned in favor of a new property tax.
As a template for a prospective path forward, Mr. Gershon proposed a 2019 interlocal cooperation agreement from 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. According to the plan, the county would continue funding 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-rate swap” in which the county would decrease its tax rate 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.
Over the past several months, the board of directors of the Presidio County Underground Water Conservation District reached the conclusion that 1) No one on the board wants a new property tax, and 2) No one on the board has a choice in the matter. Upon the advice of its lawyer, the groundwater district voted to use the Starr County interlocal agreement –– with its tax-rate swap provision –– as the template for reaching an understanding with the Presidio County Commissioners. This agreement was approved by the county commissioners at their meeting on September 12.
The groundwater district will hold the election requesting an ad valorem tax by November 7, 2023. Since groundwater districts are the preferred method of groundwater management in Texas because they provide for local control by those most familiar with the resource and most affected by any regulation, the stakes could not be higher. If the voters reject the new tax, the groundwater district –– and the protections it alone can provide –– will cease to exist in Presidio County.
Trey Gerfers is a San Antonio native and serves as general manager of the Presidio County Underground Water Conservation District. He also works 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. He can be reached at [email protected]