County residents likely to vote on formation of Arroyo Flood District in November

The Sierra County Board of Commissioners passed a resolution to create an Arroyo Flood District. A petition was presented to the District Court and a hearing scheduled so that the question of forming the flood district and names of candidates for the board can be on the ballot in November.

The efforts to form the Sierra County Arroyo Flood District

The petition (p. 176) presented to the District Court outlined the need for an Arroyo Flood District in Sierra county and described the boundaries as “including all properties within both the incorporated and unincorporated areas of Sierra County”.

In the petition it is described how Sierra county is susceptible to flooding because of its “arid climate and the presence of many arroyos” that can quickly become “raging torrents” during heavy rainfall. Reference was also made to floods in 2020 and 2022 in Truth or Consequences and in Williamsburg. The 2022 flood resulted in a Governor’s Emergency Flood Declaration.

Establishment of a Sierra County Flood District is aimed to address the “urgent” need of “mitigating the risks associated with arroyo flooding”. The flood district is intended to be proactive in establishing flood control measures to both protect life and property but also in hopes that development and economic growth in the county will not be thwarted by flood-related damages.

County attorney Dave Pato elaborated during the April 16 County Commissioner’s meeting that since the board for the Arroyo Flood District would be elected (for six year, staggered terms), the county’s flood management efforts would provide more “local representation, accountability, stability and transparency” than the current system in place in the county (see below).

Formation of Flood Control Districts is allowed by statute. Since flood control districts are political subdivisions of the state, there are a number of steps involved in forming them. The first step, which was performed by the Sierra county Board of Commissioners was to file a petition with the District Court.  A public hearing date of June 21, 2024 at 1:30 pm in the Sierra County District Courthouse at 311 N. Date in Truth or Consequences has been set. 

Amber Vaughn, Sierra county manager, explained via email that the purpose of the District Court hearing is to determine if the petition is valid and “has been submitted in accordance with the Flood Control District Act and that the allegations of the petition are true” and whether the petition should be considered by the people of Sierra county.

After the hearing has taken place, the District Court will order the question of forming the Arroyo Flood District be put to the voters of the county at the next election, November 5, 2024. At the same time nominees for the five seats on the flood district board will be included on the ballot.

Members of the flood district board are called “directors”. To be a director nominee on the ballot, a petition, signed by at least five voters, must be filed with the District Court before Wednesday August 7. Whoever signs the petition is no longer qualified to sign another petition for a different nominee.

Nominees for the directors of Arroyo Flood District are only required to be residents of the district. There is no subdivision of the district so that directors would represent different regions. 

Attorney Pato posited that having elected board members would mean there would be pre-election campaigns and debates. However, Sierra county, like almost any other small county, rarely has more than one candidate for most elected positions. And, even if there is more than one candidate for any position, debates are very uncommon. Thus, Sierra county residents could very well be “represented” by five directors who have volunteered because they have an interest in flood control in a particular region of the county.  Those regions of the county would, indeed, be represented by flood directors who, as described by Pato, have a “deep understanding of the risks, concerns, and priorities” of the areas they are familiar with.

If the voters of the county opt to form the Arroyo Flood District, then the board of directors are empowered to “protect watercourses, watersheds, public highways, life and property…from floods or storm waters”. They will also have the power to exercise the right of eminent domain.

The board of directors will fund their projects through a combination of taxes, loans, bonds and grants. A tax levy of up to $0.50 per $1,000 of property value can be collected without a vote from the electorate. However, if approved by the voters, the tax can be increased to up to $2 per $1,000. Taxes that might be collected for the Arroyo Flood District can be used anywhere in the district that the board of directors deems necessary.

All business of the Arroyo Flood District must be done at public meetings which take place on a regular basis. Directors are not paid for their service nor may they profit from any contracts or other transactions.

I asked county manager Vaughn if the flood district boundaries can be up for discussion at the District court hearing. Her response via email was “I do not read the Flood District Act to permit the District Court to alter the boundaries of the proposed district to be submitted to the voters”. It is unclear whether objections to the Arroyo Flood District boundaries by Sierra county residents at the hearing would have an impact on the Court’s acceptance of the petition as written. 

If the voters approve formation of the Arroyo Flood District, the established boundaries can be changed. Properties can be included by petitioning the board. In a hearing, the public is then given the opportunity to voice objections before the flood directors vote on including the new properties.

Properties can be excluded after formation of the Arroyo Flood District. A property can be considered for exclusion if an owner petitions the board. However, the board might decide that it is not in “the best interests of the district” to exclude the property.

It’s been reported that the county of Valencia, which also employs Dave Pato as attorney, is planning to include formation of a flood district on their November ballot. 

Current county office for flood control 

The county already has an office to deal with infrastructure issues resulting from flooding, the office of Flood Commissioner. The office was created by the Board of County Commissioners. The Flood Commissioner is a political appointee of the governor and has a two year term with a salary of $1.

Pato explained to the county commissioners that the Flood Commissioner, as an appointed, not elected, official means that they “may not be directly accountable to the population”. They may also “not have the same level of local knowledge or engagement” with the populace as an elected official. Pato also said that the position may not be stable as it can change with a change in governorship. The Flood Commissioner, also does not seem to be held as accountable as elected officials. IPRA requests are not honored and public meetings are not required. However, last summer, Flood Commissioner Jones did hold a hearing requesting public input for projects.

The Flood Commissioner is tasked with inspecting rivers and streams and determining what type of work is needed to protect life and property. The type of work the commissioner can have performed include constructing and maintaining  “dikes, embankments, dams, ditches or other structures or excavations necessary” to control flood water.

The Board of County Commissioners is responsible for obtaining the funding for the work of the Flood Commissioner. The County Commission “may contract to borrow funds through state or federal agencies or through the New Mexico finance authority for flood control purposes and may levy an annual tax at a rate not to exceed one dollar fifty cents ($1.50), or any lower maximum amount required by operation of the rate limitation”. Currently the County Commission has set the annual tax rate for the Flood Fund at $1.50 per $1,000 of taxable property value.

I have contacted both the offices of the Sierra county government and the Flood Commissioner Sandy Jones to find out how much money the Flood Fund receives annually. The county government would not supply the information and instead instructed me to file an inspection of public records request with the Flood Commission. I did but no response has been forthcoming. Assessor Michael Huston provided the board of county commissioners with an estimated total taxable property for the year 2024 of $390,360,557. At an annual levy rate of $1.5 per $1,000, the annual Flood Fund should be approximately $585,000 for 2024. The actual amount accumulated in the Flood Fund is higher since funds unused in one year are carried over to subsequent years. According to Jones’ report for 2023, there were no capital or maintenance projects constructed. By email, county manager Amber Vaughn did respond this week and said that the total amount in the Flood Fund is currently $1,881,492.00. That number does not segregate between the different drainage areas.

Attorney Pato suggested to the County Commissioners that formation of the Arroyo Flood District would allow taxes to be cut by suspending the taxes that supply the Flood Commission Flood Fund. Of course, that tax can be cut even if the Flood District is not formed. The county commission is responsible for setting the tax rate.

I asked county manager Vaughn what the standing of the Flood Commission would be if the voters approved the Arroyo Flood District. Would the county commission be able to “decommission” the Flood Commission? Vaughn replied via email that “the continued existence of the office of the County Flood Commissioner is subject to the approval of the Board of County Commissioners.”

While it is clear that formation of the office of the county flood commissioner is subject to the approval of the board of county commissioners , it is not so clear that the “continued existence” of the office is also subject to its approval. The statutes do not include a reference to closing down the office after it has been formed. However, not providing funds or obtaining money for grants would, for all intents and purposes, have the same effect as no longer approving the “continued existence” of the office.

There are a number of restrictions on the Flood Commissioners office. Foremost is that the “taxes collected shall only be used and disbursed for flood control projects in the drainage area for which they were assessed” (emphasis added). Thus, for example, in the Animas creek drainage area, only the taxes collected from properties in that area can be used to perform work there. The same is true of any other drainage areas including the municipalities of Truth or Consequences, Elephant Butte and Williamsburg. The flood fund is supposed to be maintained to keep separate each drainage area.

During a 2022 special meeting of the County Board of Commissioners, Flood Commissioner Jones stressed the need to spend flood funds in the drainage areas where the monies were collected. At that time, he stated that about 80% of the money collected comes from the local municipalities. 

Jones seems to be keeping up with that mandate. In the January 24, 2024 meeting of the Truth or Consequences City Commission (page 26) city manager Angie Gonzales stated that Jones “has offered  us some funding from his fund” in the amount of $100,000. Discussion at the meeting focussed on dealing with maintenance issues in the city’s four “high-hazard” dams. According to City Commissioner Merry Jo Fahl, “a lot of these maintenance issues … have been on inspections for quite some time”. The city commission opted to use the Flood Fund monies to “do basic maintenance….to St. Anne’s and Marie Street dams” with other remaining dams included if the funds were sufficient.  Gonzales confirmed by email that the city has met with Jones about a project but they have “not finalized anything yet”.

Another restriction on the Flood Commissioner’s office is that only streams and rivers are covered. However, much of the flooding problems in the county are in arroyos. To deal with arroyo flooding, the County Board of Commissioners does have the power to designate Emergency Flood Districts and appoint superintendents who have lived in their emergency district for at least two years. Those emergency districts can deal with “river, stream or arroyo” flooding. However, the County Commission seems not to have opted for that course of action. 

I asked each of the county commissioners, Travis Day, James Paxon and Hank Hopkins why they chose to work towards establishing a new Arroyo Flood District rather than setting up Emergency Districts. However none of the three chose to respond.

County manager Vaughn did, however, kindly respond to a similar question from me. Her response was “The Emergency Flood Districts permitted by NMSA 1978, Sections 4-50-10 through -17 would not work as it contemplates the County commandeering the manual labor of its constituents for $2.00 per day for each day’s service required of him, and $3.00 per day for each day’s service required of any team belonging to him, and there is no funding mechanism for the work permitted by that Act except for the fines on those who fail to appear and work on behalf of the District.”

However, under the statutes Vaughn listed, the county would not be required to “commandeer” constituents. The County Commission could, certainly, “summon” constituents in the emergency flood district but by no means would be required to do so. The County Commission is clever enough to know that would not work in the year 2024 and they would be capable of considering alternatives. 

I asked what would happen to the money in the Flood Fund if the county office of the Flood Commissioner no longer existed. Vaughn replied that “there is ample room for cooperation between the Flood Commissioner, the County and the Flood District to expend the existing county flood funds in accordance with the mandates [that require the funds be expended in the drainage area where they are collected]”. Therefore, one would expect that the County could also work with Emergency Flood Districts and the Flood Commissioner if the County Commission was to establish Emergency Flood Districts.

In Summary

I’ve attempted to explain the process of forming a new Arroyo Flood District in the county. I’ve also compared the differences between the current Flood Commission and the proposed Arroyo Flood District. There are clearly strengths and weaknesses in both. While both entities could continue to exist if the voters choose to establish an Arroyo Flood District, there is no guarantee that the County Commission would continue to fund and work with the Flood Commission if an Arroyo Flood District was established. In the end it will be up to the voters if an Arroyo Flood District is established. Just as important, it is necessary for volunteers to run for the director positions that are needed for the Arroyo Flood District to run in a democratic manner. When there is only one nominee for any given position, we are not functioning as a democracy.

It also behooves the County Commission, Flood Commission and, if established, the Flood District to work in a more conciliatory manner than currently appears to be the case. Governmental officials, whether elected or not, are the servants to all the people, not just their cohorts even if they are elected unopposed or appointed by a governor.

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Debora Nicoll
Debora Nicoll

Debora Nicoll, a member of the board of the Sierra County Public-Interest Journalism Project, will cover the Sierra County Commission for the Citizen, as she did for the Sierra County Sun, capitalizing on her past regular attendance at its monthly meetings as a concerned citizen and champion of responsive government. Nicoll was born and raised in the midwest but is a southwesterner by choice, calling Sierra County home since 2010, when she retired from a 22-year career as a research scientist.

Posts: 36

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