*1 TRP: ATIVDRNEY GENERAL OF TEXAS AUWISN. - 7elll *O-N L BII.&
Am- o-An,, July 18, 1977
Hon. Joe A. Hubenak, Chairman Opinion No. H-1024 House Committee on Agriculture
and Livestock Re: Authority of counties Texas House of Representatives bordering Gulf of !4exico or 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 regulations governing all areas of the county subject to flooding , or if regulations,so enacted are applicable only to areas subject to flooding by the Gulf.of Mexico or its tidal waters. Article 1581e-1 was enacted by the Legislature in 1969. Like article 8280-13, V.T.C.S., article 1581e-1 was enacted for the purpose, inter alia, of permitting political subdivisions of the State to enactregulations neces- sary to participate in the National Flood Insurance Program.
See 42 U.S.C. 66 4001-4128: Attorney General Opinions 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 Pro- gram., Cf. Attorney General Opinion H-1011 (1977) (a county has no presx authority to enact land use regulations for flood- prone areas 'under a?ticle 8280-~13 unless it qualified for par- ticination in the National Flood Insurance Program bv June 30,
Article 1581e-1 thus authorizes counties bordering the Gulf of Mexico or its tidewaters to qualify for participa- tion 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 rising water prone, areas. " Section 4 of article 1581e-1 provides:
,p. 4229 *2 , , Hon. Joe A. Rubenak, Chairman - Page 2
The cosmiissioners court of any such county shall have the power and authority to enact and enforce regulations which regulate, re- strict, or control the management and use of land, structures, and other development in flood, or rising water prone, areas in ~such a manner as to reduce the danger of
damage caused by flood losses. This power and authority may include, but shall not be limited to, requirements for flood-proofing of structures which are oermitted to remain in, or be constructed ini, flood or rising water prone, areas; regulations concerning minimum elevation of any structure nermitted to be erected in, or improved in, &ch areas; specifications for drainage; and any other action which is feasible to minimize flooding and rising water damage.
(Smphasis added). A "flood, or rising water 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 appli- cable to areas subject to flooding by the Gulf of Wexico or its tidal waters, 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 examination of the legisla- tive history of article 1581e-1. As originally introduced, the bill which was ultimately enacted as article 1581e-1 provided:
The term 'flood, or rising water prone, area" as used in this Act means areas
that are subject to or exposed to flooding by waters and consequential damages.
Senate Bill 734, 61st Leg., Reg. Sees., S 2. The Senate Com- mittee on Insurance amended the bill to substitute the more limited definition of "flood, or rising water prone, area" found in section 3 of article 1581e-1. The amended bill then *3 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 regulations promulgated pursuant to article 1581e-1 to areas subject to flooding by the Gulf of Mexico or its tidal waters, including lakes, bays, inlets and lagoons.
Section 2 of article 1581e-1, however, empowers the com- missioners 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 bound-
aries of flood; or rising water prone,
areas. The suitability of such deter-
mination shall be conclusively estab-
lished when the commissioners court of
auchounty shall have made a finding
in a resolution passed by it that an
area or areas located within the bound-
aries of such county are flood, or rising water prone, areas.
(Emphasis added). Thus, the commissioners court of a county bordering the Gulf of Mexico or its tidewater limits may con- clusively determine the geographical scope of its powers under article 1581e-1 through a resolution finding the bound- aries of flood or rising water prone areas. Cf. Texas Highway Commission v. El Paso Building and Constructii%-Trades Council, 234 S.W.Zd 857 (Tex. 1950) (statute making determination of the Highway Commission as to general prevailing wage "final" made Commission's decision not subject to review by the courts).
SUMMARY The commissioners court of a County bor- dering the Gulf of Mexico or its tide-
waters is authorized by article 1581e-1, V.T.C.S., to enact land use regulations
applicable only to areas subject to flooding by the Gulf of Mexico or its tidal waters, including lakes~, bays, inlets and lagoons.
The commissioners court may conclusively establish ~the limits of such 'areas by making findings in a resolution passed by it.
p. 4231 *4 .
Attorney General of Texas APPROVED:
ROBERT ~HMTE, Chairman
ginion Cosdttee
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