2022 has seen a lot of environmental damage in Sierra county resulting from the Black fire followed by drenching monsoon rains. Clean up from floods has been difficult not only because mother nature fails to follow the rules of man but also because of misunderstandings between the flood commissioner and county board of commission about what the role of flood commissioner is.
It seems the best way to find out what the flood commissioner is supposed to do is look at the state’s legislation that addresses the issue of how counties can deal with potential and real floods. That legislation can be found here.
I’ll attempt to explain the legislation. Please keep in mind that I am not a lawyer or a person who has experience reading legislation. However, I’m a reasonable intelligent person (or at least like to think) and had spent my career translating my colleagues’ versions of ChineseEnglish and JapaneseEnglish and ArgentineEnglish and even TexanEnglish into AmericanEnglish so how difficult can it be to translate LegalEnglish into AmericanEnglish? My attempt to explain the legislation follows. I will then leave this open for our readers’ comments and clarifications.
Chapter 4 of the current New Mexico statutes annotated (familiarly referred to as NMSA 1978) deals with counties and article 50 in that chapter specifically deals with flood control. Article 50 is divided into 17 sections, the first 9 detail how the county can establish a flood commission, what the flood commissioner does and how the flood commission is funded. Sections 10-17 in the chapter deal with emergency floods, how the county is divided into districts that each have a flood superintendent who deals directly with flood emergencies and what the flood superintendent can do to mitigate ongoing floods.
The roles of the county board of commission, flood commissioner and emergency flood superintendents are outlined as follows. It appears, but is not strictly defined, that the flood commissioner is responsible for flood prevention and the emergency flood superintendents for dealing with flood emergencies.
The county board of commission
Sierra county’s board of commission is composed of three commissioners who, while they each represent a single district are elected ‘at large’ in the county. In other words every resident of Sierra county has a vote for each of the seats. Our current commission is composed of James Paxon, Travis Day and Hank Hopkins.
It is the board’s responsibility to establish the office of the flood commissioner and establish emergency flood districts. While the governor appoints the flood commissioner, the board appoints and approves the work of flood superintendents for each established emergency flood district.
I’ve inquired about the number of emergency flood districts in the county and names of the flood superintendents for the districts and am awaiting a response from the new county manager, Amber Vaughn. There are no employees designated as “flood superintendent” in either the Flood Commission department or the Emergency Management department so the board may not have appointed any.
It is also the responsibility of the board to deal with the financial aspects of flood control and flood emergencies. That includes levying and collecting taxes to establish a “county flood fund”. In order for the board to set the tax rate, the flood commissioner certifies the county’s needs and makes cost estimates. The county is supposed to use an “appropriate separate account within the county flood fund” to pay for the flood commissioner’s work and employees and contractors. If the county flood fund is insufficient for work the flood commissioner deems necessary, then the board can apply for grants or loans to see the work done.
The board uses “emergency district flood funds” to pay for the emergency flood superintendents’ expenditures.
Flood Commissioner
The office of the flood commissioner is approved by the county board at their discretion if any river or stream that might flood is present. Once the office is approved, the governor has the sole power to appoint the flood commissioner to a two year term. The current flood commissioner is Sandy Jones who replaced Travis Atwell this year.
The flood commissioner is responsible for determining what work needs to be done, how to do it and estimates the costs.
Areas in the county that are prone to damage from flooding are inspected by the flood commissioner. Those inspections determine which projects the flood commissioner undertakes “at their discretion”. Various structures or excavations can be constructed and maintained to control flood waters and protect life and property.
It is also up to the flood commissioner to determine how the needed projects are accomplished and if there are projects that need the cooperation of adjoining counties. The flood commissioner is able to employ engineers or other personnel. The flood commissioner can directly supervise projects or contract for the work. If the cost of work exceeds the county flood fund they can recommend the board contract with state or federal agencies to obtain grants or loans to complete the projects.
To perform inspections, maintain or build flood controls or perform any other duties the flood commissioner and their agents or employees are allowed to enter/exit all properties. Flood commissioners also have the power to condemn property if needed.
An annual report from the flood commissioner to the board and the state engineer is due at the end of December. The report must be full and detailed and give a description of all work done and all expenditures during the year.
Emergency Flood Superintendent
In addition to the office of the flood commissioner, it is the duty of the board to establish emergency flood districts and appoint an emergency flood superintendent for each district. The person who fills this position must be a citizen of the United States and New Mexico and reside in the emergency flood district for at least two years. They also must take an oath and be bonded. As stated above, there appears to be no emergency flood superintendents for Sierra county.
In times of a flood emergency, the superintendent is given the power to do what is necessary to mitigate the flooding. With the consent of the board, the superintendent can “summon all or any part of the able-bodied male persons under the age of sixty” who live within five miles of a flooded area to work in controlling and diverting flood waters.
Those able-bodied male persons have the options of performing the work or, substituting another person to do the work or, paying in cash $2 per day that he is required to serve (maximum 5 days) plus $3 per day for any “team belonging to him”. The money goes into the emergency district flood fund.
(This all sounds very much like the Civil War’s “Rich man’s war, poor man’s fight” except that even a poor man can afford not to work).
Paying for flood work
Sierra county assessor, Michael Huston, confirmed that the the county assesses the maximum annual tax rate the board can earmark for flooding which is $1.50 per $1,000 of taxable property value. Any property in the county that is within 5 miles of any river or stream that can flood or cause flooding is subject to the flood tax. The monies that accumulate from those taxes are used to create a “county flood fund”. That fund can only be used and disbursed for flood control projects. It can be used to construct or maintain structures or excavations that are “necessary” or “may” be used to “prevent future damage from floods” in the district where the taxes are collected.
It appears that the county flood fund is supposed to be divided into sub-funds. The flood commissioner’s expenditures and debts are paid out by the county treasurer using an “appropriate separate account within the county flood fund”. Likewise, each emergency flood district has an “emergency district flood fund”. Any money collected by the emergency flood superintendent for payment in lieu of work or fines for failure to work or for obstructing the duties of the superintendent is added to that district’s emergency fund.
In the fiscal year 2019/2020 $452,822.87 (p 62, Fund 627-0-1010) was collected from Sierra county property owners for the county flood fund. The expenses reported for that 2019/2020 fund was $97,736.61 (p.138, Fund 627). Of those expenses about $12,000 (Fund 627-26-2339) was used for flood repairs or construction.
Flood taxes “shall only be used and disbursed for flood control projects”. The county flood commissioner’s “expense or indebtedness” cannot exceed the amount of the annual taxes except if “there be remaining on hand funds arising from previous similar levies”, the $355,086 not used in 2019/2020 should have accumulated in the county flood fund. Likewise, any excess monies from previous or subsequent years should be accumulating in the fund. I am waiting to hear from manager Vaughn what the value of the flood fund is currently.
Time will tell how much of the county flood fund will be spent dealing with this year’s floods and how much the federal government will pay for that work through the Federal Emergency Management Agency. With any luck, there will be plenty of funds for the new flood commissioner to take a proactive stance in flood control and prevention projects in the county.
Additional Information
Thursday Oct 27, 2002. County manager Amber Vaughn has replied to my inquiries:
She understands that “the mill levy provided by NMSA 1978, Section 4-50-2 (1921), and the County Flood Commissioner’s ability to employ and engineering and other personnel, and to directly supervise or contract for the construction and maintenance of flood control works pursuant to Section 4-50-3 (1921). The use of the County Flood Commissioner, as opposed to the process set forth by NMSA 1978, Section 4-50-10 to 17 [this is the legislation the allows establishment of flood districts and emergency flood superintendents-Nicoll’s clarification], allows the County address the flooding without commandeering the work of all able-bodied males in the county under the age of sixty years residing with the district.
The annual mil levy generates about $447,000 and currently there is approximately $1.4M in the fund.
As TorC is in Sierra County, does that mean that the city has access to that money as well as the rest of the county? I’m not sure what has been done here in the city to abate the rather consistent flooding of the downtown area. I would hope that the city has also written for other grants to address this recurring situation. From what I’ve observed, the downtown is basically the end of a very large funnel for the rainwater that falls over a fairly large part of the entire city! I hope you will publish what you find out about what is left in the fund and what it has been spent on over the past years. I fear it will be more than interesting when the results are in.
I would doubt that the city has ‘access to that money’. The flood commissioner is the one who decides what projects need to be done, hires out or contracts out or does the work themselves and disburses the funds. IMO, yes, if TorC residents pay the flood tax (and they should since they live within an area that can flood), they should also be in the mix for projects.
Specifically, in the annotations to NMSA 1978 4-50-1 it says: “Cooperation with cities and federal government proper. — A county and a city can enter into an agreement to cooperate in sponsoring a flood control project, and counties and cities can cooperate with the federal government and seek aid under the Watershed Protection and Flood Prevention Act (16 U.S.C. § 1001 et seq.). 1963 Op. Att’y Gen. No. 63-82 (opinion rendered under former law).”
And in annotations to NMSA 1978 4-50-2: “County construction within city limits. — Sandoval County could use county flood funds to construct flood control structures located within the county and within the drainage area as set forth in this section, when necessary to prevent flood waters from rivers or streams from damaging life and property, even if the structures lay within the Rio Rancho city limits. 1988 Op. Att’y Gen. No. 88-30”
The annual flooding of Hwy 52North in Winston is a travesty and outrage. Either Sierra County has not applied sufficient pressure on the state or the state highway department is apathetic. The flooding is within a few hundred yards of the state highway departments facility in Winston. The state news of the CERTAINTY of the annual flooding and road closure due to flooding because it has erected three road signs alerting driving that “Water may be present”, Flooding is possible,” and ” Roadway may flood” or words to that effect.
When the roadway is flooded emergency vehicle can not cross the road. Neither can USFS trucks, cargo semi’s to the Zeolite mine, hunters, or other travelers. It’s only a matter of time before there is a fatality due to drowning or lack of expeditious medical attention.
Shame on elected and appointed officials at all levels!