Untitled Texas Attorney General Opinion ( 1977 )

Honorable Homer R. Taylor Opinion No. H-1011
County Attorney
Wharton County Re: Authority of county
304 Courthouse Building commissioners court to make
Wharton, Texas 77488 and enforce building ordi-
nances in compliance with
National Flood Insurance Act.
Dear Mr. Taylor:
you have asked our opinion whether a county's commis-
sioners court presently has authority to make and enforce
building ordinances .in compliance with the National Flood
Insurance Act of 1968, as amended and expanded by the Flood
Disaster Protection Act of 1973, 42 U.S.C. 5s 4001 - 4128.
The authority for a commissioners court to promulgate land
use regulations in flood-prone areas in conformity with the
Federal Act is derived from article 8280-13, V.T.C.S. See
Attorney General Opinion H-978 (1977). Article 82SO-13Es
enacted by the Legislature in 1969, at its first session
after the National Flood Insurance Act made available federally
subsidized flood insurance. Such insurance is offered only
to residents of areas where an appropriate public body has
adopted land use and control measures consistent with com-
prehensive criteria promulgated by the Secretary of Housing
and Urban Development.
Section 2 of article 8280-13 states the purpose of that
article as
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. . . .
Political subdivisions are authorized to take
P. 4177
Honorable Homer R. Taylor - page 2 (H-1011)
all necessary and reasonable actions
to comply with the requirements and
criteria of the National Flood Insur-
ance Program. . . .
Id. S 5.
- Section 8280-13 further provides:
Political subd~ivisions
----- whichqualify
-
for the National Flood Insurance Pro-
-.-.-_---_
gram . . . may adopt and promulgate
reasonable rules and regulations which
are necessary for the orderly effectua-
tion of the respective authorizations
herein.
Id. S 8 (emphasis added). Political subdivisions wishing to
qualify for the benefits of the National Flood Insurance Pro-
gram were authorized to do so "by June 30, 1970." -Id. 9 9.
We have previously referred to article 8280-13 as a
"limited grant of authority." Attorney General Opinion H-978
(1977) at 3. We further expressed our view in Opinion H-978
that,
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.
Id. at 2. Such regulations "have no application" unless made
pursuant to the requirements or criteria of the Federal Act.
Id. at 3.
-
We believe, therefore, that a county has no present autho-
rity to enact land use regulations for flood-prone areas under
article 8280-13 unless it qualified for participation in the
National Flood Insurance Program by June 30, 1970. Article
8280-13 authorized counties to qualify by that date, and
carried no continuing authorization for counties to qualify
later. Counties that did qualify for the federal insurance
program by June 30, 1970, have continuing authority, pur-
suant to sections 5 and 8 of article 8280-13, to enact
measures necessary to comply with federal regulations pro-
mulgated under the National Flood Insurance Program.
p. 4178
Honorable Homer R. Taylor - page 3 (H-1011)
gUMMARY
A county has no present authority to enact
land use regulations for flood-prone areas
under article 8280-13, V.T.C.S., unless it
qualified for participation in the National
Flood Insurance Program by June 30, 1970.
Counties that did qualify for the federal
insurance program by that date have continuing
authority to'enact measures insofar as they
are necessary to comply with federal regula-
tions promulgated pursuant to the National
Flood Insurance.Act.
Very truly yours,
Attorney General of Texas
APPROVED:
, First Assistant
..,
/’; d
Y’
&A
C. ROBERT HEATH, Chairman
Opinion Committee
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p. 4179