Officials ponder opting out of the “Midland exemption” water policy

By ALBERTO TOMAS HALPERN

PRESIDIO COUNTY – Presidio County commissioners and the county judge discussed during a commissioners court meeting Tuesday the notion of amending a section of the Texas Water Code as it pertains to Presidio County.

As part of the county’s obligation to piece together a local legislative agenda to give to state legislators for the upcoming 2013 legislative session in Austin, county officials appear to be on board with opting out of the municipal exemption clause to the regulatory authority of the Presidio County Underground Water Conservation District.

At issue is what is generally referred to as the “Midland Exemption,” or section 36.121 of the Texas Water Code, which states that certain municipalities are exempt from regulation by water conservation districts in the production and use of groundwater.

County Judge Paul Hunt explained that this is an issue that has been identified for the past three legislative sessions but due to a lack of coordination and consensus between the political subdivisions in the county, the city of Presidio, the city of Marfa, the Presidio County Underground Water Conservation District, and the county commissioners court, has never seen the light of day in the state capitol.

“The idea is to get the discussion going to get everyone on the same page to petition legislators in Austin to protect our water,” Hunt said.

Sitting in the audience was Marfa City Administrator and water conservation district board president Jim Mustard.

Speaking on behalf of him and not for any political subdivision, Mustard said, “I appreciate the judge’s efforts. I think this concept is something that city council members were in favor of the last time we went around. I share the judge’s concern as a resident of the county. We need to come together to an agreed solution to get rid of this exemption.”

Hunt was firm in wanting to see unanimous support from all political subdivisions in the county for pulling Presidio County out of the exemption clause.

At a Marfa City Council meeting later that day, Mustard said to council members on the issue, “Bottom line is we need to find a legislative solution to remove Presidio County from this exemption. In my opinion, if you’re going to regulate water, then you need to regulate all the water, not just a few wells. We need to monitor every gallon of water in Presidio County.”

As it stands, the water conservation board can regulate and issue  permits for water wells, but not for the cities of Marfa and Presidio. Hunt has proposed having Presidio County opt out of the exemption while “softening the blow” to the two cities in the county. Hunt wants to include grandfathering in the water production the two cities have already had in hopes of getting the two municipalities to get on board with supporting opting out of the regulatory exemption.

“If the city of Marfa is willing to do this I think Presidio will, too,” Commissioner Eloy Aranda said at the county meeting.

“We’ve been lucky to have our richness in water. We need to protect that resource,” Commissioner Felipe Cordero added.

During a meeting Wednesday of the water conservation board, Mustard reiterated his position that every gallon of water in Presidio County be monitored and regulated by the water board.

“The issue has been, we need to remove this exemption, but the city of Marfa and the city of Presidio have not agreed to a blanket exemption,” Mustard said. “We need to come to a solution that everybody agrees with… and ask that legislators approve whatever we agree to as a solution.” Mustard agreed with Hunt’s proposal to allow Marfa and Presidio to continue producing water at about the same rate they have been without having to go through a permitting process through the water board.

Hunt, this time in the audience, continued his mantra to get all entities on the same page and to keep talking about the issue.

“Let’s not have the discontinuity we’ve had in past years,” said Hunt, assuring water board members that county officials will continue discussing the issue during their regular meetings.

“I’m hoping we will come together and that you could do the same and that the cities do the same,” he added.

Water board member Carlos Nieto, representing the city of Presidio commented, “Previous attempts have failed very simply because of lack of communication with the cities.” Nieto also spoke to putting a permitting price on the cities to produce water, saying that it’s hard to put a price tag on a resource like water that sustains the lives of city residents. “Having to pay and be assessed value on that was not appropriate,” Nieto said, adding that previous attempts to opt out of the exemption were never brought to the city of Presidio until the last minute. “We fought it and we prevailed. We stopped it,” said Nieto about not supporting opting out of the exemption. “I can assure that unless the cities are involved and there’s good, solid communication and plenty of dialogue, make no assumptions.” Nieto added that without allowing the cities’ current water production to be grandfathered in, “I don’t think we’ll get very far.” Mustard agreed.

“I led the charge to get (Marfa) city council to not support it. That doesn’t mean that I can’t support this or some version of it because I think we have made progress,” Mustard said.

Water board member Patt Sims of Shafter commented, “I have no predisposition. I’m curious if the historical (exemption) is acceptable to Marfa and more importantly is it acceptable to Presidio. Presidio is growing by leaps and bounds. Is that going to tax Presidio more?”

Looking at Sims, Mustard said, “All this is a trade off.”