## TRP: ATIVDRNEY GENERAL OF TEXAS AUWISN.

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*O-N L BII.& Am- o-An,, July 18, 1977

Hon. Joe A. Hubenak, Chairman OpinionNo. H-1024 House Committee on Agriculture and Livestock Re: Authority of counties Texas House of Representatives borderingGulf of !4exicoor State Capitol its tidewater limits to enact Austin, Texas 78701 flood control regulations under article 1581e-1,V.T.C.S.

Dear Chairman Bubenak:

You have asked whether a county bordering the Gulf of Mexico or its tidewater limits is **authorized** by article 158le-1, V.T.C.S., to enact flood control regulationsgoverning all **areas** of the county subject to flooding, or if regulations,so enacted are applicable only to areas subject to floodingby the Gulf.of Mexico or its tidalwaters. Legislature in 1969. Article 1581e-1was enacted by the Like article 8280-13,V.T.C.S., article 1581e-1was enacted for the purpose, interalia, of permitting political subdivisionsof the State to enactregulations neces**sary** to participate in the National Flood Insurance Program. See 42 U.S.C. 66 4001-4128:Attorney GeneralOpinions H-1011, -78 (1977). Unlike article 8280-13,however, article 1581e-1 applies only to counties bordering on the Gulf of Mexico or the tidewater limits thereof. Article 1581e-1 is also dissimilar from article 8280-13 in that it contains no deadline for counties to qualify for participation in the National Flood Insurance Program., Cf. AttorneyGeneral Opinion H-1011 (1977) **(a** county has no presx authority to enact land use regulations for floodprone areas 'undera?ticle 8280-~13 unless it qualified **for** particination in theNational Flood InsuranceProgram bv June 30,

Article 1581e-1 thus authorizes countiesbordering the Gulf of Mexico or its tidewaters to qualify for participation in the federal flood insurance program at any time, but limits the geographical coverage of flood control regulations promulgated by such counties to "flood,or risingwater prone, areas." Section 4 of article 1581e-1 provides:

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Hon. Joe A. Rubenak, Chairman - Page 2

The cosmiissioners court of any such county shall have the power and authority to enact and enforce regulationswhich regulate, restrict, or control themanagement and use of land, structures, and other development in flood, or rising water prone, areas in ~sucha manner as to reduce the danger of damage caused by flood losses. This power and authoritymay include,but shall not be limited to, requirements for flood-proofing of structureswhich are oermitted to remain in, or be constructed ini, flood or rising water prone, areas; regulationsconcerning minimum elevation of any structurenermitted to be erected in, or improved in, &ch areas; specifications for drainage;and any other action which is feasible tominimize flooding and risingwater damage. (Smphasisadded). A "flood, or risingwater prone, area" is defined by section 3 as

**an** area that is subject to or exposed to. flooding by the Gulf of Mexico or its tidal waters, including lakes,bays, inlets, and lagoons,which results in damage to land or property.

We believe these provisions of article 1581e-1 limit the power of the commissioners court to enacting regulations applicable to areas subject to floodingby the Gulf of Wexico or its tidalwaters, including lakes,bays, inlets and lagoons, and do not make those regulations applicable to all areas of the county. Cur conclusion is supported by an examinationof the legislative history of article 1581e-1. As originally introduced, the bill which was ultimately enacted as article 1581e-1provided:

The term 'flood, or risingwater prone, area" as used in thisAct means areas that are subject to or exposed to flooding by waters and consequentialdamages.

Senate Bill 734, 61st Leg., Reg. Sees., S 2. The Senate Committee on Insuranceamended the bill to substitute the more limiteddefinition of "flood, or risingwater prone, area" found in section 3 of article 1581e-1. The amended bill then

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passed both houses of the Legislature unanimously. We think it clear that the action of the Senate Cosnnittee was intended to limit the geographical scope of regulationspromulgated pursuant to article 1581e-1 to areas subject to floodingby the Gulf of Mexico or its tidal waters, includinglakes, bays, inlets and lagoons.
Section 2 of article 1581e-1, however, empowers the commissioners court of the affected county to determine the boundaries of such areas. Section 2 provides:

Any county bordering on the Gulf of Mexico or the tidewater limits thereof may determine and describe the boundaries of flood; or rising water prone, areas. The suitability of such determination shall be conclusively establishedwhen the commissioners **court** of auchounty shall have made a finding in a resolutionpassed **by** it that **an** area or areas locatedwithin the boundaries of such county are flood, or rising waterprone, areas. (Emphasisadded). Thus, the commissioners courtof a county bordering the Gulf of Mexico or its tidewater limitsmay conclusively determinethe geographical scope of itspowers under article 1581e-1 through a resolution finding the boundaries of floodor rising water prone areas. Cf. Texas Highway Commission v. El Paso Building and Constructii%-TradesCouncil, 234 S.W.Zd 857 (Tex.1950) (statutemaking determination**of** the Highway Commission as to general prevailingwage "final" made Commission'sdecision not subject to reviewby **the courts).** 

SUMMARY

The commissionerscourt of a **County** bordering the Gulf of Mexico or its tidewaters is authorizedby article 1581e-1, V.T.C.S., to enact landuse regulations applicableonly to areas subject to flooding by theGulf of Mexico or its tidalwaters, includinglakes~, **bays,** inlets and lagoons. The commissioners courtmay conclusively establish~thelimits of such 'areas bymaking findings in a resolutionpassed by it.

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Hon. Joe A. Hubenak, Chairman - Page 4

APPROVED: Attorney General of Texas

ROBERT ~HMTE, ginion Cosdttee Chairman

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