April 12, 1977
The Honorable Bill Clayton Opinion No. H- 978
Speaker of the House
Texas House of Representatives Re: Authority of political
State Capitol subdivisions to adopt land
Austin, Texas 78701 use and control measures
pursuant to article 8280-13,
V.T.C.S.
Dear Speaker Clayton:
You have asked our opinion whether the governing body
of a political subdivision may adopt and enforce land use and
control measures pursuant to article 8280-13, V.T.C.S., which
are in excess of the minimum standards required to qualify
for coverage under the National Flood Insurance Program.
Article 8280-13 was enacted by the Legislature in 1969, at its
first session after congressional enactment of the National
Flood Insurance Act of 1968, 42 U.S.C. 55 4001-4128. That
Act makes federally sponsored and subsidized flood insurance
available to residents of areas where an appropriate public
body has adopted adequate land use and control measures
consistent with comprehensive criteria promulgated by the
Secretary of Housing and Urban Development.
Article 8280-13 states its purpose as follows:
The purpose of this Act is to evidence a
positive interest in securing flood
insurance coverage under this Federal
program, and to so procure for those
citizens of Texas desiring to participate;
and the promoting of public interest by
providing appropriate protection against
the perils of flood losses and encouraging
sound land use by minimizing exposure of
property to flood losses.
Sec. 2. Section 5 of that article authorizes political
subdivisions to take:
P. 4075
The Honorable Bill Clayton - page 2 (H-978)
all necessary and reasonable actions to
comply with the requirements and criteria
of the National Flood,Insurance Program . . . .
You ask whether this authorization enables political
subdivisions to adopt and enforce requirements in excess
of the minimum necessary to qualify for insurance under the
federal program. We assume your request does not extend to
the authority of home rule cities which derive their powers
from article 11, section 5 of the Constitution, subject only
to explicit limitation by the Constitution, general law or
charter. Article 8280-13 does not limit the powers a home
rule city may otherwise authorize. 'SeeLower Colorado River
Authorit v. City of San Marcos, 523xW.2d 641 (Tex. 1975);
4wEGtwateru
.- A -Gerw0 S.W.Zd 550 (Tex. 1964).
The Secretary of Housing and Urban Development has
promulgated various requirements for local land use and
control standards. 24 C.F.R. fiS1910.3, 1910.4. These
required standards must be adopted and enforced in order
for any community to qualify for flood insurance under the
federal program. 24 C.F.R. S 1909.2. Additionally, the
Secretary has promulgated various "considerations" *to
encourage the formulation and adoption of overall compre-
hensive management plans for flood-prone and mudslide-prone
areas." 24 C.F.R. S 1910.21 et seq. These "considerations"
address social and economic development "goals," but do not
appear to be a part of the required measures requisite to
eligibility for insurance. It is not clear whether these
"considerations" constitute "criteria of the National Flood
Insurance Program" with which political subdivisions are
authorized to comply by section 5 of article 8280-13. In
any event, the authorization of section 5 clearly is not
an unconditional grant of authority for political subdivi-
sions to enact land use regulations not otherwise sanctioned
by law. The regulations so enacted must have as their
purpose and effect compliance with the requirements and
criteria promulgated pursuant to the National Flood Insurance
Program.
P. 4076
The Honorable Bill Clayton - page 3 (H-978)
In this connection, you also ask if a governing body
may continue to enforce land use measures adopted pursuant
to article 8280-13 after they are no longer required under
the Federal Act because of an action by the Flood Insurance
Administration in identifying the loo-year flood surface
elevation or other action. Federal regulations provide that
an eligible community must require building permits for all
proposed construction or other improvements and perform
other supervisory functions in the entire community when the
Flood Insurance Administrator has not yet defined the special
flood hazard areas within the community. 24 C.F.R. S 1910.3(a).
After the Administrator has identified the flood plain area
having special flood hazards, however, building permits and
community supervision are required only in the identified
flood plain area. 24 C.F.R. S 1910.3(b). As the Adminis-
trator makes findings as to the loo-year flood surface
elevation, provides floodway data and identifies coastal
high hazard areas, additional community regulation is re-
quired within the affected areas. 24 C.F.R. S 1910.3(c)
(d)(e)-
While the mandatory requirements of 24 C.F.R. S 1910.3
and the nonobligatory "considerations" of 24 C.F.R. 5 1910.21
contemplate broad land use powers by political
"F:
sub ivisions in flood-prone and mudslide-prone areas, these
regulations nowhere speak of land use controls outside those
areas after the Flood Insurance Administrator has identified
a flood plain area with special flood hazards. In view of
the limited grant of authority by article 8280-13 for poli-
tical subdivisions to take reasonable and necessary actions
"to comply with the requirements and criteria of the National
Flood Insurance Program," we believe it clear that land use
regulations adopted by subdivisions (other than home rule
cities) pursuant to article 8280-13 have no application
outside the areas designated by the Flood Insurance Admin-
istrator after that designation is made.
Finally, you ask if the Texas Water Development Board
may adopt rules restricting political subdivisions from
exercising control measures in excess of the minimum com-
pliance criteria. Article 8280-13 directs the Water De-
velopment Board to "aid, advise and coordinate the efforts"
of political subdivisions and to "adopt and promulgate
P. 4077
The Honorable Bill Clayton - ,page 4 (H-978)
reasonable rules and regulations which are necessary for the
orderly effectuation of the respective authorizations herein."
V.T.C.S. art. 8280-13, 99 6(a),'8. While the Board therefore
has general powers to coordinate the "orderly effectuation"
of land use regulations, we do not believe article 8280-13
grants to the Board power either to limit the grant of
authority to political subdivisions contained therein or
to control activities of subdivisions outside the scope of
that article.
SUMMARY
Article 8280-13, V.T.C.S., authorizes
political subdivisions to enact land 'use
regulations which have as their purpose
and effect compliance with requirements
and criteria promulgated pursuant to the
National Flood Insurance Program. Such
regulations have no application outside
areas designated by the Flood Insurance
Administrator after that designation is
made. Article 8280-13 does not empower
the Texas Water Development Board to limit
the grant of authority to political sub-
divisions contained therein or to control
activities of subdivisions outside the
scope of that article. id
Very truly yours,
of Texas
APPROVED:
Opinion Committee
P. 4078