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 controlmeasures pursuant to article 8280-13, V.T.C.S.

Dear Speaker Clayton:

You have asked our opinion whether the governing body of a political subdivisionmay adopt and enforce land use and controlmeasures 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 8280-13was enacted by the Legislature in 1969, at its first session after congressional enactment of the National Flood InsuranceAct 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 controlmeasures consistentwith comprehensive criteria promulgated by the Secretary of Housing and Urban Development.

Article 8280-13 states its purpose as follows:

The purpose of thisAct 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 interestby providing appropriateprotection 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. 4075The HonorableBill Clayton - page 2 (H-978)

all necessary and reasonable actions to comply with the requirementsand criteria of the National Flood,InsuranceProgram

. . . .
You ask whether this authorizationenables political subdivisions to adopt and enforce requirements in excess of theminimum necessary to qualify for insuranceunder the federalprogram. We assume your request does not extend to the authority of home rule citieswhich derive their powers from article 11, section 5 of the Constitution, subject only to explicit limitationby the Constitution, general law or charter. Article 8280-13does not limit the powers a home rule citymay 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 promulgatedvarious requirements for local land use and control standards. 24 C.F.R. fiS 1910.3, 1910.4. These required standardsmust be adopted and enforced in order for any community to qualify for flood insuranceunder the federalprogram. 24 C.F.R. S 1909.2. Additionally, the Secretary has promulgatedvarious "considerations" *to encourage the formulation and adoption of overall comprehensivemanagement plans for flood-proneand 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 requiredmeasures requisite to eligibility for insurance. It is not clear whether these "considerations"constitute "criteriaof the National Flood Insurance Program" with which political subdivisionsare authorized to comply by section 5 of article 8280-13. In any event, the authorizationof section 5 clearly is not
an unconditional grant of authority for political subdivisions to enact land use regulationsnot otherwise sanctioned by law. The regulations so enactedmust have as their purpose and effect compliancewith the requirements and criteria promulgatedpursuant to the National Flood Insurance Program.

P. 4076The Honorable Bill Clayton - page 3 (H-978)

In this connection,you also ask if a governingbody may continue to enforce land use measures adopted pursuant to article 8280-13 after they are no longer required under the FederalAct because of an action by the Flood Insurance Administration in identifying the loo-year flood surface elevation or other action. Federal regulationsprovide that
an eligible communitymust requirebuilding permits for all proposed constructionor other improvementsand perform other supervisory functions in the entire communitywhen the Flood InsuranceAdministratorhas not yet defined the special flood hazard areaswithin the community. 24 C.F.R. S 1910.3(a). After the Administratorhas identified the flood plain area having special flood hazards, however, building permits and community supervisionare 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 floodwaydata 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 themandatory requirements of 24 C.F.R. S 1910.3 and the nonobligatory "considerations"of 24 C.F.R. 5 1910.21

"F: contemplatebroad land use powers by political sub ivisions in flood-proneandmudslide-prone areas, these regulations nowhere speak of land use controls outside those
areas after the Flood InsuranceAdministrator has identified
a flood plain area with special flood hazards. In view of the limitedgrant of authority by article 8280-13 for political subdivisions to take reasonable and necessary actions "to complywith the requirements and criteria of the National Flood InsuranceProgram,"we believe it clear that land use regulations adoptedby subdivisions (otherthan home rule cities) pursuant to article 8280-13have no application outside the areas designatedby the Flood InsuranceAdministrator after that designation ismade.
Finally, you ask if the Texas Water Development Board may adopt rules restrictingpolitical subdivisions from exercising controlmeasures in excess of theminimum compliance criteria. Article 8280-13 directs the Water Development Board to "aid, advise and coordinate the efforts" of political subdivisionsand to "adoptand promulgate

P. 4077The HonorableBill Clayton - ,page4 (H-978)

reasonable rules and regulationswhich are necessary for the orderly effectuationof the respective authorizationsherein." 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 activitiesof subdivisionsoutside the scope of that article.

SUMMARY

Article 8280-13,V.T.C.S., authorizes political subdivisions to enact land 'use regulationswhich have as their purpose and effect compliancewith requirements and criteriapromulgated pursuant to the National Flood Insurance Program. Such regulationshave no application outside
areas designatedby 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