April 12, 1977 

The Honorable Bill Clayton 

Speaker of the House 

Opinion No. H- 978 

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. 'See Lower 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. fiS 1910.3, 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 comprehensive 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 subdivisions 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 Administrator makes findings as to the loo-year flood surface 

elevation, provides floodway data and identifies coastal 

high hazard areas, additional community regulation is required 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 

"F: 

contemplate broad land use powers by political 

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 political 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 Administrator 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 compliance criteria. Article 8280-13 directs the Water Development 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 subdivisions contained therein or to control 

activities of subdivisions outside the 

scope of that article. id 

Very truly yours, 

APPROVED: 

Opinion Committee 

of Texas 

P. 4078