Can a Texas county enforce floodplain building rules over waterways that a port or navigation district controls?

Plain-English summary

The Harris County Attorney asked the Attorney General a jurisdictional question about flooding and the Houston Ship Channel. Harris County runs a floodplain management program, the kind of program that lets property owners buy federally backed flood insurance. The Port of Houston Authority, meanwhile, controls the waterways of the ship channel and the streams that feed it. The county wanted to know whether it could apply its floodplain building rules, in particular rules about how high a structure must be elevated, to structures built over waterways that fall inside the port authority's territory, or whether the port authority's control over those waterways shut the county out.

The opinion started by confirming that the port authority really does have exclusive control over building over its waterways. The authority traces back to a 1927 navigation district covering the Houston Ship Channel and its tributary streams. Texas law gives a navigation district's governing commission "absolute control" over the channels and waterways within its limits, and the authority's own special statutes reinforce that power. So, geographically, the authority is in charge of what gets built over its waterways.

But that was not the end of it, because the county pointed to a different statute aimed at a different problem. Local Government Code section 240.901 lets a county that borders the Gulf of Mexico or its tidewater limits map its flood-prone areas and adopt and enforce rules governing land and structures there, expressly including the minimum elevation of a structure, all to reduce flood damage and to qualify property for the federal flood insurance program. Harris County borders Galveston Bay, had adopted floodplain regulations in 1985, and was the federally designated floodplain administrator for its area. On top of that, Water Code section 16.315 tells every political subdivision, the port authority included, to take all necessary and reasonable actions to comply with the National Flood Insurance Program.

The Attorney General resolved the apparent clash by reading the two grants of authority as complementary rather than contradictory. The port authority is the more specific authority when it comes to geography (it controls these particular waterways), while the county is the more specific authority when it comes to subject matter (floodplain management and elevation of structures). Read together, the county may regulate the building of structures over waterways within the authority's jurisdiction, but only to the extent necessary to comply with the requirements of the National Flood Insurance Program. The opinion noted that Water Code section 16.315, by directing the authority itself to do whatever is necessary to comply with the federal program, supports treating the county's narrow floodplain role as consistent with the authority's broader control.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Local Government Code and Water Code provisions cited, the National Flood Insurance Program requirements, and the port authority's enabling statutes have all been amended since 1992, so confirm current law before relying on anything described here.

Background and statutory framework

The Port of Houston Authority was created in 1927 as the Harris County Houston Ship Channel Navigation District of Harris County, Texas. Acts 1927, 40th Leg., ch. 292, at 437-40; Acts 1927, 40th Leg., 1st C.S., ch. 97, at 256-57. Although originally established as a navigation district under article III, section 52 of the Texas Constitution, a 1957 statute provided that it has all powers conferred upon districts originally organized under article XVI, section 59. Acts 1957, 55th Leg., ch. 117, at 241, 247. (The name was changed to the Port of Houston Authority in 1971. Acts 1971, 62d Leg., ch. 45, at 79.) The authority's jurisdiction extends to all the submerged lands lying under all streams tributary to the Houston Ship Channel and all other tidal flats or overflow land adjacent or appurtenant to such streams. Acts 1927, 40th Leg., ch. 292, at 438. Its declared purpose includes the development of deep water navigation and the improvement of rivers, bays, creeks, streams, and canals within or adjacent to the district, and the construction, maintenance, operation, development, and regulation of the wharves, docks, and other facilities incident to the operation or development of ports or waterways within the district and extending to the Gulf of Mexico. Id.

Subchapter C of chapter 60 of the Water Code, which deals with navigation districts, applies to any navigation district "not participating with the United States in a navigation project." Water Code § 60.031. Section 60.043 provides that the commission of the navigation district "shall have absolute control over channels, or other waterways within the corporate limits of the district and turning basins, yacht basins, and storage basins." By virtue of this provision and the various special statutes dealing with the authority's powers, the authority has exclusive jurisdiction over the building of structures over waterways within its geographical limits.

Section 240.901 of the Local Government Code, however, recognizes the National Flood Insurance Act of 1968 and states that its purpose is to evidence a positive interest in securing flood insurance coverage under the federal program and to encourage sound land use by minimizing exposure of property to flood losses. Local Gov't Code § 240.901(a). It provides that a county bordering on the Gulf of Mexico or on the tidewater limits of the gulf may determine the boundaries of any flood-prone area, conclusively established when the commissioners court adopts a resolution finding the area is flood-prone, id. § 240.901(b), and that the commissioners court may adopt and enforce rules that regulate the management and use of land, structures, and other development in a flood-prone area to reduce flood damage, including rules on the minimum elevation of a structure permitted to be constructed in the area, id. § 240.901(c)(2). These provisions apply to Harris County, which borders Galveston Bay; pursuant to them, the commissioners court adopted floodplain management regulations in 1985, and Harris County is designated by the federal government as the floodplain administrator for the area within its boundaries. Section 16.315 of the Water Code authorizes all political subdivisions, of which the authority is one, to take all necessary and reasonable actions to comply with the requirements of the National Flood Insurance Program.

The Attorney General concluded that, although the authority has exclusive jurisdiction over the building of structures over waterways within its geographical limits, Harris County is granted specific authority under section 240.901 to regulate the elevation of structures within the authority's boundaries for the limited purpose of floodplain management. The authority thus has the more specific statute with respect to geographical extent, while Harris County has the more specific statute with regard to subject matter. The statutes can be harmonized so that Harris County is empowered to regulate the building of structures over waterways within the authority's jurisdiction to the extent necessary to comply with the requirements of the National Flood Insurance Program. Water Code section 16.315 supports this conclusion by directing the authority to take all necessary and reasonable actions to comply with that program.

Common questions

Who controls building over the Houston Ship Channel waterways?
The Port of Houston Authority. The opinion concluded the authority has exclusive jurisdiction over the building of structures over waterways within its geographical limits, based on the navigation-district statutes giving its commission absolute control over those waterways.

So how could Harris County regulate anything there?
Through a narrow, subject-specific power. Local Government Code section 240.901 lets a gulf-bordering county adopt and enforce floodplain rules, including minimum structure elevations. The opinion read that as letting the county regulate over the authority's waterways, but only to the extent necessary to comply with the National Flood Insurance Program.

How did the opinion reconcile the two authorities?
By treating the authority as the more specific authority on geography and the county as the more specific authority on subject matter, then harmonizing them so the county's role is limited to what the federal flood insurance program requires.

Citations

• Local Government Code § 240.901(a), (b), (c)(2)
• Water Code §§ 60.031, 60.043, 16.315
• Tex. Const. art. III, § 52; art. XVI, § 59
• Acts 1927, 40th Leg., ch. 292; Acts 1927, 40th Leg., 1st C.S., ch. 97; Acts 1957, 55th Leg., ch. 117; Acts 1971, 62d Leg., ch. 45
• National Flood Insurance Act of 1968

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0150
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0150.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

August 12, 1992

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002-1891

Opinion No. DM-150

Re: Whether Harris County may, for purposes of floodplain management, regulate the building of structures over waterways within the jurisdiction of the Port of Houston Authority (RQ-294)

Dear Mr. Driscoll:

You have requested our opinion as to whether Harris County may, for purposes of floodplain management, regulate the building of structures over waterways within the jurisdiction of the Port of Houston Authority.

The Port of Houston Authority (hereafter the "authority") was created in 1927 as the Harris County Houston Ship Channel Navigation District of Harris County, Texas.[1] Acts 1927, 40th Leg., ch. 292, at 437-40; Acts 1927, 40th Leg., 1st C.S., ch. 97, at 256-57. Although the authority was originally established as a navigation district under article III, section 52 of the Texas Constitution, a 1957 statute provided that it has all powers conferred upon those districts originally organized under article XVI, section 59. Acts 1957, 55th Leg., ch. 117, at 241, 247. The jurisdiction of the authority extends to "all the submerged lands lying under . . . all . . . streams . . . tributary to the Houston Ship Channel . . . and all other tidal flats or overflow land adjacent to or appurtenant to [such] streams . . . ." Acts 1927, 40th Leg., ch. 292, at 438. The purpose of the authority is declared to be

      the development of deep water navigation and the improvement of rivers, bays, creeks, streams, and canals within or adjacent to such District, and . . . construct[ion] and mainten[ance of] canals or waterways to permit of navigation or in aid thereof, and for the purpose of and authority to acquire, purchase, undertake, construct, maintain, operate, develop, and regulate wharves, docks, warehouses, grain elevators, bunking facilities, belt railroads, floating plants, lighterage, lands, towing facilities, and all other facilities or aid incident to or necessary to the operation or development of ports or waterways within said District and extending to the Gulf of Mexico.

Acts 1927, 40th Leg., ch. 292, at 438.

Subchapter C of chapter 60 of the Water Code, which deals with navigation districts, is applicable to any navigation district "not participating with the United States in a navigation project." Water Code § 60.031. Section 60.043 thereof provides:

      The commission [of the navigation district] shall have absolute control over channels, or other waterways within the corporate limits of the district and turning basins, yacht basins, and storage basins.

By virtue of this provision and the various special statutes dealing with the authority's powers, it seems clear that the authority has exclusive jurisdiction over the building of structures over waterways within its geographical limits.

Section 240.901, Local Government Code, provides, however, in pertinent part:

          (a) Recognizing the burden on the nation's resources, congress enacted the National Flood Insurance Act of 1968, under which flood insurance can be made available through the coordinated efforts of the federal government and the private insurance industry by pooling risks and by the positive cooperation of state and local government. The purpose of this subchapter is to evidence a positive interest in securing flood insurance coverage under the federal program . . . and to encourage sound land use by minimizing exposure of property to flood losses.

          (b) A county bordering on the Gulf of Mexico or on the tidewater limits of the gulf may determine the boundaries of any flood-prone area of the county. The suitability of that determination is conclusively established when the commissioners court of a county adopts a resolution finding that the area is a flood-prone area.

          (c) The commissioners court may adopt and enforce rules that regulate the management and use of land, structures, and other development in a flood-prone area of the county in order to reduce the extent of damage caused by flooding. The matters to which the rules may apply include:
          . . . .
              (2) the minimum elevation of a structure permitted to be constructed in the area.

Local Gov't Code § 240.901(a), (b), (c)(2). These provisions are applicable to Harris County, which has a part of its border on Galveston Bay. You indicate that, pursuant thereto, the commissioners court of Harris County in 1985 adopted regulations for floodplain management. Harris County is at present designated by the federal government as the floodplain administrator for the area within its geographical boundaries. Section 16.315 of the Water Code, on the other hand, authorizes all political subdivisions, of which the authority is one, to "take all necessary and reasonable actions to comply with the requirements of the National Flood Insurance Program."

Although, as we have indicated, the authority has exclusive jurisdiction over the building of structures over waterways within its geographical limits, Harris County is granted specific authority, under section 240.901, Local Government Code, to regulate the elevation of structures within the geographical boundaries of the authority for the limited purpose of floodplain management. Thus, the authority has the more specific statute with respect to geographical extent, while Harris County has the more specific statute with regard to subject matter. In such circumstances, we believe that the statutes can be harmonized in such a manner that Harris County is empowered to regulate the building of structures over waterways within the authority's jurisdiction to the extent necessary to comply with the requirements of the National Flood Insurance Program. Section 16.315 of the Water Code supports this conclusion by admonishing the authority to "take all necessary and reasonable actions to comply with the requirements of the National Flood Insurance Program."

                               SUMMARY

          Harris County is authorized to regulate the building of structures over waterways within the jurisdiction of the Port of Houston Authority to the extent necessary to comply with the requirements of the National Flood Insurance Program.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General

[Footnote 1: The name of the district was changed to the Port of Houston Authority in 1971. Acts 1971, 62d Leg., ch. 45, at 79.]