QBfficeof tip I?lttornep @enera
Btate of aexae
DAN MORALES August 12,1992
ATTORNEY
GENERAL
Honorable Mike Driscoll Opinion No. DM-150
Harris County Attorney
1001 Preston, Suite 634 Re: Whether Harris County may, for
Houston, Texas 77002-1891 purposes of floodplain management,
regulate the building of structures over
waterways within the jurisdiction of the
Port of Houston Authority (RQ-294)
Dear Mr. Driscoll:
You have requested our opinion as to whether Harris County may, for
purposes of floodplain management, regulate the building of structures over
waterways within the jurisdiction of the Port of Houston Authority.
The Port of Houston Authority (hereafter the “authority”) was created in
1927 as the Harris County Houston Ship Channel Navigation District of Harris
Comty, Texas.’ Acts 1927,4Oth Leg., ch. 292, at 437-40; Acts 1927, 40th Leg., 1st
C.S., ch. 97, at 256-57. Although the authority was originally established as a
navigation district under article III, section 52 of the Texas Constitution, a 1957
statute provided that it has all powers conferred upon those districts originally
organized under article XVI, section 59. Acts 1957,55th Leg., ch. 117, at 241,247.
The jurisdiction of the authority extends to “all the submerged lands lying
under.. . all.. . streams . . . tributary to the Houston Ship Channel.. . and all other
tidal flats or overflow land adjacent to or appurtedant to [such] streams.. . .” Acts
1927,4Oth Leg., ch. 292, at 438. The purpose of the authority is declared to be
the development of deep water navigation and the improvement
of rivers, bays, creeks, streams, and canals within or adjacent to
such District, and.. . construct[ion] and mainten[ance of] canals
or waterways to permit of navigation or in aid thereof, and for
the purpose of and authority to acquire, purchase, undertake,
‘The. name of the district was changed to the Port of Houston Authority in 1971. Acts 1971,
62d Leg., ch. 45 at 79.
p. 786
Honorable Mike Driscoll - Page 2 W-150)
construct, maintain, operate, develop, and regulate wharves,
docks, warehouses, grain elevators, bunking facilities, belt
railroads, floating plants, lighterage, lands, towing facilities, and
all other facilities or aid incident to or necematy to the
operation or development of ports or waterways within said
District and extending to the Gulf of Mexico.
Acts 1927,4Oth Leg., ch. 292, at 438.
Subchapter C of chapter 60 of the Water Code. which deals with navigation
districts, is applicable to any navigation district “not participating with the United
States in a navigation project.” Water Code P 60.031. Section 60.043 thereof
provides:
The commission [of the navigation district] shall have absolute
control over channels, or other waterways within the corporate
limits of the district and turning basins. yacht basins, and storage
basins.
By virtue of this provision and the various special statutes dealing with the
authority’s powers, it seems clear that the authority has exclusive jurisdiction over
the building of structures over waterways within its geographical limits.
Section 240.901. Local Government Code, provides, however, in pertinent
part:
(a) Recognizing the burden on the nation’s resources,
congress enacted the National Flood Insurance Act of 1968,
under which flood insurance can be made available through the
coordinated efforts of the federal government and the private
insurance industry by pooling risks and by the positive
cooperation of state and’local government. The purpose of this
subchapter is to evidence a positive interest in securing flood
insurance coverage under the federal program.. . and to
encourage sound land use by minhkiq exposure of property to
flood losses.
(b) A axmty bordering on the Gulf of Mexico or on the
tidewater limits of the gulf may determine the boundaries of any
p. 787
Honorable Mike Driscoll - Page 3 m-150)
flood-prone area of the county. The suitability of that
determination is conclusively established when the commis-
sioners court of a county adopts a resolution finding that the
area is a flood-prone area
(c) The commissioners court may adopt and enforce rules
that regulate the management and use of land, structures, and
other development in a flood-prone area of the county in order
to reduce the extent of damage caused by flooding. The matters
to which the rules may apply include:
....
(2) the minimum elevation of a structure permitted to
be constructed in the area
Local Gov’t Code 0 240.901(a),(b),(c)(2). These provisions are applicable to Harris
County, which has a part of its border on Galveston Bay. You indicate that,
pursuant thereto, the commissioners court of Harris County in 1985 adopted
regulations for floodplain management. Harris County is at present designated by
the federal government as the floodplain administrator for the area within its
geographical boundaries. Section 16.315 of the Water Code, on the other hand,
authorizes all political subdivisions, of which the authority is one, to “take all
necessary and reasonable actions to comply with the requirements of the National
Plood Insurance Program.”
Although, as we have indicated, the authority has exclusive jurisdiction over
the building of structures over waterways within its geographical limits, Harris
County is granted specific authority, under section 240.901, Local Government
Code, to regulate the elevation of structures within the geographical boundaries of
the authority for the limited purpose of floodplain management. Thus, the authority
has the more specific statute with respect to geographical extent, while Harris
County has the more specific statute with regard to subject matter. In such
ciramutances, we believe that the statutes can be harmonized in such a manner that
Harris county is empowered to regulate the building of structures over waterways
within the authority’s jurisdiction to the extent necessary to comply with the
requirements of the National Flood Insurance Program, Section 16.315 of the
Water Code supports this conclusion by admonishing the authority to “take all
necessary and reasonable actions to comply with the requirements of the National
Flood Illsurance Program.”
p. 788
Honorable Mike Driscoll - Page 4 m-150)
SUMMARY
Han% County is authorized to regulate the building of
structures over waterways within the jurisdiction of the Port of
Houston Authority to tbe extent necessary to comply with the
requirements of the National Flood Iusurance Program.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARYKELLER
Deputy Assistant Attorney General
RBNEAHIcKs
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 789