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Why Preserve Arroyos?

"El Paso is a unique place in many ways.  One contributing element is the natural drainage systems of arroyos.  Most of these arroyos carry runoff from the Franklin Mountains to the Rio Grande, and are dry most of the year.  They flow most heavily in late summer and early fall when tropical air masses enter our region, during a period we call our 'monsoon season'.  Originally these arroyos meandered freely across the land, responding to the volume and velocity of storm water runoff, thereby creating large flood plains and alluvial fans.  (A good example of this are the Keystone Wetlands, created and sustained by the Resler Arroyo in Northwest El Paso.)  Natural arroyos are rich in plant life due to the soil moisture that remains after runoff events.  The abundant vegetation attracts a concentration of native wildlife in search of food and shelter."

The previous paragraph is taken from "Albuquerque's Environmental Story - Environmental Topic:  Arroyos" by Rex Funk.  The only change is that El Paso and the Franklin Mountains replace Albuquerque and the Sandias, and the Keystone Wetlands and Resler Arroyo were inserted.

El Paso's Comprehensive Plan, The Plan for El Paso, outlines arroyo preservation policy in ten pages beginning on page 51.  The Comprehensive Plan protects arroyos as follows:  "Goal:  Protect and promote ecologically sensitive areas such as aquifer recharge zones, hillsides, bosques, arroyos and wetlands.  Action:  Assure preservation of natural habitats for wildlife, especially in riparian corridors (including arroyos), wetlands, and hillside areas.  Action:  Retain river, arroyos, and stream channels in their natural state to prevent undue erosion and sedimentation.  Policy:  Discourage new development in flood-prone areas.  Action:  Maintain natural stream corridors and arroyos in as original state of alignment as possible.  Action:  Design necessary flood control facilities to blend with and enhance developments through concepts such as park/ponding and retention of natural arroyos."  Arroyos are natural drainage, flood control, erosion and sedimentation (water filtration) systems, in addition to being natural flora and fauna habitats, which are the greenfields in arid desert regions.  Simply stated, arroyos are nature's gift to us.

In addition to El Paso's Comprehensive Plan, there are seven Municipal Codes that protect arroyos.  Section 19.16.050.H, Stormwater Design in the Subdivision Code.  It states, "Preservation of Natural ArroyosArroyos shall be preserved in their natural state, except that modifications of such requirements of Section 19.04.170 and is necessary to protect the public health, safety, or welfare.  If a modification is authorized to allow improvements, the design for such improvements shall be incorporated into the subdivision improvement plans and approved by the city engineer.  As part of initial review of a subdivision application prior to acceptance as complete, the city engineer shall determine the area within which improvements will require modification.  The city engineers's determination shall be forwarded to the applicant and city plan commission which shall decide on any modification requested by the applicant."  When is it necessary to protect the public health, safety or welfare by developing a subdivision or anything else in an arroyo?  On the contrary, development in arroyos endanger the public health, safety and welfare.

The other ordinances are found in Title 18, Building & Construction (Grading).  Section 18.44.020.C.  "To ensure that the grading will not adversely affect the natural topographic features, arroyos or other drainage features or alter surface runoff."  Section 18.44.220.E.1.d.  "Fills...should not be placed where they cause encroachment upon arroyos or other natural drainageways."  Title 20, Zoning, Preservation of the Natural Environment.  Property Development Standards.  Sections 20.18.130.G. 20.52.090, 20.52.100, and 20.56.100.  "In (all) planned...developments, existing vegetation, animal life, arroyos, floodprone areas, steep slopes, and other natural features shall be considered in the planning, design and layout of buildings, service areas and location of streets in the allocation of open space preserve the natural environment."

None of these ordinances have ever been enforced to anyone's knowledge.  We then need to ask ourselves two questions.  First, what is it about the English language that anyone in City Hall doesn't understand?  Secondly, based on the record, what would lead anyone to believe that passing additional arroyo preservation ordinances will be any more vigorously enforced than these?  Nevertheless, the city is working on new arroyo preservation and open space ordinances and policies that are supposed to have more teeth.  The outcome is still very much in doubt. 

The real issue is regulatory takings versus the right to develop.  Does the City of El Paso have the authority to enforce city plan standards and its codes that protect the public health, safety, welfare, historical preservation and environmental protection?  "There is a heavy burden placed on the challenger to prove that the law does not achieve a legitimate public end or that it leaves no economic value", determined by the federal courts.  Since the Resler Arroyo/Canyon was purchased with private funds and all lawsuits against the city have been dropped, the city's authority to enforce the existing arroyo protection codes remain unresolved.  A recent inventory made by El Paso's Department of Planning reports that there are 285 arroyos or flow paths that cover 8,910 acres in El Paso.  Of that number, 3,861 acres are privately owned.  The bottom line is that privately owned arroyos can be regulated, but they cannot be taken for public use.  However, publicly held arroyos must be protected before they become privately owned.   


Photo by Taylor Moore

Saving Arroyos

Borderland    Saturday, January 22, 2005

Saving arroyos no easy task

David Crowder
El Paso Times




A crowd attended the City Council meeting Friday, January 21, to discuss arroyo development. Stuart Mitchell, president of the Mountain Arroyos Neighborhood Association, was present.



Arroyo facts

·  Albuquerque conducted a study and inventory of its arroyos in 1986. Tucson did the same in 1991, identifying 36 major arroyos and creating study areas for each. Both cities have extensive policies and regulations for the development of arroyos -- most, if not all, of which are now in public hands.

·  Nearly all of the arroyos in El Paso are privately owned. They are on both sides of the Franklin Mountains and along the escarpment in the Lower Valley.

·  A seven-member ad-hoc committee proposed by West-Central city Rep. Robert Cushing and appointed by Mayor Joe Wardy in September is conducting El Paso's first in-depth examination of the issue of arroyo development.

·  The council gave the committee three months to define the issues in El Paso and to present policy recommendations to the City Council. On Dec. 21, the council gave the committee six more months to complete its work.

·  Wording in El Paso's land-use plan speaks of protecting arroyos, and a 1997 ordinance calls for preserving them unless public safety requires their alteration. That ordinance has never been enforced.

Preserving El Paso's arroyos will not be easy because Texas law strongly protects the rights of property owners who want to develop their land.

That was the thrust of a briefing that Assistant City Attorney Matt Watson gave City Council members and about 120 El Pasoans who gathered Friday at City Hall to hear about the arroyo issue.

Neighborhood associations have sought, so far unsuccessfully, to protect the West Side's Wildwood arroyo, and the City Council's efforts to block development of Resler Canyon have prompted the developer to sue the city.

Arnold Peinado, whose plan to subdivide Wildwood arroyo has helped spawn the arroyo protection movement in El Paso, was at Friday's meeting and disagreed with the view that developments in arroyos are hurting the city.

Asked afterward whether there was room for compromise on the issue, he said, "Not in what we're doing now. We'll have to think about it in the future."

Asked whether he can see any way to protect the important features of arroyos, Peinado answered with two words: "Very difficult."

Deputy City Manager Pat Adauto said El Paso does have one simple ordinance that went on the books in 1997 and seems to require that arroyos be left in their natural state unless flooding poses a threat to the public.

But, she said, that ordinance is not as straightforward as it sounds and can't be read on its own.

Stuart Mitchell, president of the Mountain Arroyos Neighborhood Association and a lawyer, contended that the ordinance means just what it says, even though the city has never enforced it.

"It seems pretty clear in saying arroyos will be preserved in their natural state," Mitchell said.

The city's director of planning, George Sarmiento, said the city's ad hoc committee on arroyos has been looking at the extensive regulations that protect arroyos and regulate their development in Albuquerque and Tucson. But state property laws in Arizona and New Mexico are very different from such laws in Texas.

Watson confirmed that, saying cities such as Austin that have tried to block development of private property for purely aesthetic reasons have lost in court, he said.

"What about ecologically sensitive areas?" Northeast city Rep. John Cook asked.

Watson replied, "There are no cases on ecologically sensitive areas in Texas."

David Crowder may be reached at; 546-6194


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