Can a Mississippi county pay to elevate private homes that don't meet flood-zone elevation requirements?
Plain-English summary
Washington County granted variances and exemptions to its Flood Damage Prevention Ordinance over the years. Now FEMA has flagged that those properties don't meet National Flood Insurance Program (NFIP) elevation requirements. MEMA is asking Washington County to perform or pay for elevation work on the affected private homes; if the work isn't done, the county risks NFIP suspension, which would prevent residents from buying flood insurance.
The county attorney asked: can the county pay or perform the work? And what authority does MEMA have to compel us?
The AG answered the first question:
No. Section 19-3-40(3) prohibits boards of supervisors from granting donations. Section 66 of the Mississippi Constitution prohibits laws "granting a donation or gratuity in favor of any person or object." A county cannot use public funds, equipment, supplies, or materials for a private purpose.
There are narrow exceptions (drainage work on private property under Section 19-5-92.1 if it's necessary for the public welfare, with incidental private benefit). But elevating private homes to meet flood-insurance requirements is a direct private benefit, not incidental. It doesn't fit the exceptions.
The AG modified the 2016 Shepard opinion (which had said counties could pay for Flood Elevation Certificates with reimbursement from owners) "to the extent inconsistent" — meaning the AG is tightening the rule.
For the second question (MEMA's authority): the AG declined. Under Section 7-5-25, the AG can't opine on the duties of an office other than the requestor's. Washington County would have to ask MEMA directly, or someone in MEMA could request an opinion about its own authority.
The AG suggested practical paths:
- Consult MEMA's Office of Mitigation
- Look for FEMA grant programs that fund private-property elevation (the federal grant flows directly to the property owner, not through county funds)
- Continue NFIP-eligible practices going forward
What this means for you
For county attorneys
Don't authorize public expenditure on private flood mitigation. Section 66 is firm. Even when the consequence (NFIP suspension) hits the county hard, the constitutional and statutory framework prohibits the spend.
Document why you cannot pay: the public-funds-for-private-purpose problem. If the Board feels political pressure to act, the legal opinion file should reflect the analysis.
For FEMA grants:
- Hazard Mitigation Grant Program (HMGP) can fund private elevation
- Pre-Disaster Mitigation grants
- Flood Mitigation Assistance grants
- Some grants flow through state-level agencies but reach the property owner directly
Coordinate with MEMA to identify available programs and assist with applications.
For boards of supervisors facing NFIP issues
The constitutional bar means you cannot fix this at county expense. Practical responses:
- Coordinate with MEMA's Office of Mitigation
- Help affected property owners apply for FEMA grants
- Review the original variance/exemption process to identify how the situation arose; tighten current practices
- Engage with FEMA on the NFIP suspension timeline; may be possible to negotiate
For going-forward variances and exemptions, ensure compliance with NFIP eligibility requirements before granting. The county's exposure to suspension is the consequence of past decisions; future decisions need tighter scrutiny.
For flood plain administrators
When considering variances or exemptions, evaluate impact on NFIP eligibility before issuing. NFIP rules constrain what state and local officials can grant; non-compliant variances create downstream issues.
Maintain records of all variances and the basis for each. If the situation arises again (and it will), the county and FEMA will look at the variance file.
For property owners in flood zones with non-compliant properties
The county cannot pay to elevate your home. But:
- Federal grant programs exist (HMGP, FMA, PDM) that may fund elevation
- Apply through MEMA or directly to FEMA, depending on the program
- If granted, the work is funded; you bear minimal cost
- If not granted, the cost is yours; flood insurance may not be available without elevation
Engage early. Grant cycles are competitive. The county's flood plain administrator may be able to facilitate.
For MEMA and FEMA grant administrators
State and federal mitigation grants exist precisely because counties cannot fund private mitigation under their constitutional and statutory frameworks. Streamline application processes for affected property owners; coordinate with county flood plain administrators on outreach.
For Mississippi specifically: the Section 66 constitutional bar is a real constraint on county-level mitigation funding. Federal grants are the primary tool.
Common questions
Q: What is the National Flood Insurance Program (NFIP)?
A: A federal program administered by FEMA that provides flood insurance to property owners in participating communities. Communities must adopt and enforce flood damage prevention ordinances meeting NFIP standards to remain eligible. Suspension means residents lose access to NFIP-backed flood insurance.
Q: What is MEMA?
A: The Mississippi Emergency Management Agency, which coordinates state-level emergency management and mitigation, including NFIP compliance.
Q: Why can't the county just pay for the elevation?
A: Section 66 of the Mississippi Constitution and Section 19-3-40(3) of the Code prohibit donations of public funds. Improving private property at public expense is donation, not public investment.
Q: What about Section 19-5-92.1 drainage work?
A: That statute allows public funds to clean drainage ditches, creeks, etc. on private property if necessary for public welfare. Incidental benefits to landowners don't make the work unlawful. But elevating a home isn't drainage work; it's direct private benefit.
Q: What's the 2016 Shepard opinion that was modified?
A: That opinion said counties could pay for Flood Elevation Certificates and seek reimbursement from owners. This 2022 opinion modifies Shepard "to the extent inconsistent" — signaling that even with reimbursement, the upfront public expenditure raises Section 66 concerns. The AG is tightening the rule.
Q: What about a "loan" to property owners for elevation?
A: A loan to a private person to improve their property runs into the same Section 66 problem. The county would have to first justify a public purpose for the loan (typically not possible for private home elevation).
Q: What if the county owns property in the flood zone that needs elevation?
A: County-owned property is different. The county can spend public funds on its own property's mitigation. The Section 66 bar is about private property.
Q: What if the county imposes a special assessment on flood-zone properties for mitigation?
A: Special assessments have their own framework. Property owners pay for improvements that benefit their property. Different from a donation. Consult special-assessment statutes; this opinion doesn't cover that path.
Q: What happens if the county is suspended from NFIP?
A: Residents in flood zones lose access to NFIP-backed flood insurance. Mortgages on properties in special flood hazard areas typically require flood insurance, so suspension can affect home sales, refinancing, and lending. The community has incentive to maintain NFIP eligibility.
Q: Can the AG opine on MEMA's authority?
A: Not in this opinion. Section 7-5-25 limits AG opinions to the requestor's office's duties. MEMA itself, or its supervising official, would have to ask about MEMA's authority.
Background and statutory framework
Mississippi's framework on public funds for private benefit:
Constitutional baseline:
- Mississippi Constitution Article 4, Section 66: "No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use."
Statutory implementation:
- Section 19-3-40(3): boards of supervisors prohibited from granting any donation
- Section 19-5-92.1(2): narrow exception for necessary drainage work on private property where it promotes public health, safety, and welfare
NFIP framework:
- Federal program administered by FEMA
- Mississippi participation administered through MEMA's Office of Mitigation
- Counties adopt local flood damage prevention ordinances meeting NFIP standards
- Variances/exemptions to local ordinances must comply with NFIP rules; non-compliant variances create eligibility issues
Prior AG opinions on Section 66:
- MS AG Op., Gamble (Apr. 14, 1993): county cannot pay for survey work to establish private property as subdivision
- MS AG Op., Roberson (July 31, 2020): drainage work allowed under Section 19-5-92.1 with public-welfare findings
- MS AG Op., Brown (Nov. 14, 2016): drainage work cannot be solely for private benefit; incidental private benefit OK
- MS AG Op., Ross (Oct. 5, 2012): flood ordinance applicability to hunting/fishing camps
- MS AG Op., Shepard (May 13, 2016): originally allowed county payment for Flood Elevation Certificates with reimbursement; modified by this opinion
The 2022 opinion synthesizes: even when MEMA pressures the county for compliance, the constitutional and statutory bar means the county cannot perform private-property elevation. The path forward is federal grants, not county funds.
Citations and references
Statutes:
- Miss. Code Ann. § 19-3-40, board of supervisors prohibitions on donations
- Miss. Code Ann. § 19-5-92.1, drainage work on private property exception
Mississippi Constitution:
- Miss. Const. art. 4, § 66, donation prohibition
Prior AG opinions cited:
- MS AG Op., Gamble (Apr. 14, 1993), county cannot pay for private subdivision establishment
- MS AG Op., Roberson (July 31, 2020), drainage work on private property
- MS AG Op., Brown (Nov. 14, 2016), drainage work and public benefit
- MS AG Op., Ross (Oct. 5, 2012), flood ordinance application
- MS AG Op., Shepard (May 13, 2016), Flood Elevation Certificates (modified by this opinion)
- MS AG Op., Crimm (Aug. 17, 2007), AG cannot opine on duties of other offices
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/05/W.Griffin-May-10-2022-Countys-Authority-to-Perform-or-Pay-to-Elevate-Private-Properties-to-Mitigate-Flood-Damage.pdf
Original opinion text
May 10, 2022
Willie Griffin, Esq.
Attorney for Washington County Board of Supervisors
Post Office Box 189
Greenville, Mississippi 38702-0189
Re: County's Authority to Perform or Pay to Elevate Private Properties to Mitigate Flood Damage
Dear Mr. Griffin:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, Washington County (the "County") granted exemptions or variances to the Flood Damage Prevention Ordinance (the "Ordinance") to certain private property owners. We understand from discussions with the County's Flood Plain Director following the receipt of your request that the County adopted this Ordinance as a condition for the County's residents to be able to purchase flood insurance through the National Flood Insurance Program ("NFIP"). It now appears that those properties do not meet the requirements for continued participation in the NFIP. You state that the Mississippi Emergency Management Agency ("MEMA") is requiring Washington County to perform the work or pay the cost of elevating certain properties that were constructed pursuant to variances to the Ordinance granted by the County. You assert that should MEMA report alleged failures to comply with NFIP eligibility requirements to FEMA, the County would be in jeopardy of being suspended from participation in the NFIP.
Questions Presented
1) Does the County have authority to perform or pay the cost of mitigation work to elevate certain private properties to the level required by the Ordinance?
2) What authority does MEMA have to order the County to upgrade private property to bring such property into compliance with the Ordinance?
Brief Response
1) Washington County does not have authority to use public funds to perform work on private property for the benefit of said property owners. To do so would be a violation of the statutory and constitutional prohibitions against unlawful donations.
2) Your second question asks about MEMA's powers to compel the elevation of certain property. Because this office cannot opine on questions involving the official duties of someone other than the requestor, we are unable to answer your second question.
Applicable Law and Discussion
The board of supervisors of each county, while vested with broad authority over many aspects of county governance and maintenance, is prohibited from granting any donation. Miss. Code Ann. § 19-3-40(3). The prohibition against granting donations is also found in Article 4, Section 66 of the Mississippi Constitution of 1890, which provides: "No law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the legislature, nor by any vote for a sectarian purpose or use."
As a general rule, "the board of supervisors of a county may not use any public funds, equipment, supplies or materials for any private purpose, nor may they grant any donation." MS AG Op., Gamble at 1 (Apr. 14, 1993) (opining that the county did not have authority to pay for survey, drafting, and engineering work requested by private property owners in order to establish their property as a subdivision). There are certain circumstances where a board of supervisors may incur costs and pay necessary expenses to clean or clear drainage ditches, creeks, channels, or conduits on private property but only after a finding is made and entered on the minutes "that such work and/or expenses are necessary in order to promote the public health, safety and welfare of the citizens of the county. . . ." MS AG Op., Roberson at 1 (July 31, 2020) (quoting Miss. Code Ann. § 19-5-92.1(2)). However, this office has made clear that such "drainage work may not be performed solely to benefit private property owners, but where the drainage work is necessary for the public welfare, incidental benefits to a landowner will not render the improvements unlawful." MS AG Op., Brown at *2 (Nov. 14, 2016) (citations omitted).
In the circumstances you describe, the County is being asked to perform or pay for mitigation work to bring the elevation of privately owned properties to the level required by the Ordinance. There is no drainage work as authorized by statute. Therefore, it is the opinion of this office that the County does not have authority to perform or pay for the work required to elevate privately owned properties to bring them to the level required by the Ordinance because to do so would result in an unlawful donation to the private property owners.
Footnote 1: Your request does not explain the type, size, location, or number of privately owned properties. This office has previously issued opinions related to the applicability of local flood ordinances to hunting and fishing camps. MS AG Op., Ross at *2-3 (Oct. 5, 2012).
Footnote 2: To the extent that MS AG Op., Shepard at *1–2 (May 13, 2016), which opines that the county may pay for the cost of providing Flood Elevation Certificates but must seek reimbursement from property owners, is inconsistent with our reasoning herein, Shepard is hereby modified.
Your second question asks about MEMA's powers to compel the elevation of certain property. Because this office cannot opine on questions involving the official duties of someone other than the requestor, we are unable to answer your second question. MS AG Op., Crimm at *1 (Aug. 17, 2007) (finding that an Attorney General's opinion cannot "address questions of law regarding an office other than the requestor's").
We suggest the County consult with the MEMA Office of Mitigation to determine the best course of action to ensure continued participation in the NFIP. There may be grants or other sources of funding through FEMA that could be used for mitigation modifications on private property.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Misty Monroe
Misty Monroe
Special Assistant Attorney General