A milestone in efforts to protect Presidio County’s groundwater resources
One week ago today, the Presidio County Underground Water Conservation District (PCUWCD) voted unanimously to issue operating permits to the cities of Marfa and Presidio. This momentous decision was made possible by the passage of Texas Senate Bill 3044 by a vote of 33-0 in the Senate and 131-0 in the House.
The bill, which the governor signed into law on May 29, removes the entire county from the provisions of section 36.121 of the Texas Water Code. This obscure rule was inserted into the water code by a politician from Midland who worried that his town could fall victim to overzealous regulation by a groundwater district.
According to 36.121, any city with a population of roughly 133,000 or less (based on Midland’s population) is automatically exempt from the authority of a local groundwater district. While the exemption would seem purely beneficial because it enables cities to pump and use as much water as they want, it also poses hidden risks because the very authority that the exemption seeks to circumvent also happens to provide the strongest protection for groundwater resources available under Texas law.
The 36.121 exemption is perhaps best understood as a reflection of the state’s conflicting philosophies when it comes to water. On one side, you have the Legislature’s sporadic efforts to provide for local control of groundwater through the legally mandated right of communities to create conservation districts. On the other side, you have court decisions spanning over a century that uphold the right of individual landowners to pump as much water as they choose under a legal concept known as the Rule of Capture. Although our current climate reality clearly points to the need for a more comprehensive, data-based approach to ensure the greatest protection possible for all who depend on groundwater, a critical mass of Texas lawmakers remains firmly in thrall to an unassailable right to freedom from just about any form of regulation, regardless of the consequences. A community’s only hedge against these contradictions is to create a groundwater conservation district, ensure that it has a dedicated source of funding, and opt out of the 36.121 exemption to protect everyone within that district.
To better appreciate the historic significance of this moment, it’s helpful to consider how we got here. As PCUWCD chairman back in 2018, I sought to educate our elected leaders in Presidio and Marfa about the complex nature of groundwater law in Texas and the need to opt out of the exemption. In a nutshell, I asked each city to give up its ability to pump limitless amounts of groundwater in exchange for permits that would act as insurance policies for each city’s water supply. I warned them that permits would become vitally important if a new user, such as a water exporter, were to set up shop next to a city’s wells and start pumping under their own permits from the groundwater district. Cities that operate under the 36.121 exemption are exposing themselves to unnecessary risk, I argued, which is why neighboring cities in Pecos, Reeves, Jeff Davis and Culberson counties got rid of the exemption long ago.
Since both cities had to agree simultaneously, the ensuing negotiations were like a rollercoaster ride. In late 2018, the Marfa City Council voted to move forward with the effort, but Presidio ghosted the district thanks in large part to Rod Ponton. After the pandemic ended in 2022, the Presidio City Council expressed a desire to obtain permits, but Marfa was no longer interested. On the third attempt earlier this year, both cities agreed to opt out of the exemption and approved resolutions supporting the necessary legislation just in time for its passage by the 89th Legislature last month. We owe a huge debt of gratitude to Sen. Cesar Blanco and Rep. Eddie Morales for their tireless efforts to get the local legislation passed.
It is often said that groundwater districts are the preferred means of groundwater management in Texas because they provide for local control by those most familiar with the resource and most affected by any regulation. But local control can only be effective if there is a commensurate level of local engagement. Now that we have a groundwater district with a secure source of funding approved by the voters in 2023, and full jurisdiction over the county thanks to SB 3044, the next objective is to develop a deep bench of informed residents. The current directors are not going to serve forever, and the day will come when I no longer work for the district. If you care about groundwater, please contact me at the email address below to be added to the district’s mailing list. Your involvement is critical to the district’s continued success.
Texas law, though imperfect, gives local communities the power to manage and conserve their groundwater, a finite resource essential to life. Citizens who fail to engage in the wise and effective use of this power may ultimately find themselves wishing they had.
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.