                               QBfficeof tip I?lttornep @enera
                                           Btate of aexae
DAN MORALES                                   August 12,1992
 ATTORNEY
      GENERAL
     Honorable Mike Driscoll                             Opinion No. DM-150
     Harris County Attorney
     1001 Preston, Suite 634                             Re: Whether Harris County may, for
     Houston, Texas 77002-1891                           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
     Comty, Texas.’ Acts 1927,4Oth 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 appurtedant to [such] streams.. . .” Acts
     1927,4Oth 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,


              ‘The. name of the district was changed to the Port of Houston Authority in 1971. Acts 1971,
     62d Leg., ch. 45 at 79.




                                                    p.   786
Honorable   Mike   Driscoll - Page 2     W-150)




          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 necematy to the
          operation or development of ports or waterways within said
          District and extending to the Gulf of Mexico.

Acts 1927,4Oth 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 P 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 minhkiq     exposure of property to
          flood losses.

              (b) A axmty bordering on the Gulf of Mexico or on the
          tidewater limits of the gulf may determine the boundaries of any


                                        p.   787
Honorable Mike Driscoll - Page 3          m-150)




          flood-prone area of the county. The suitability of that
          determination is conclusively established when the commis-
          sioners 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 0 240.901(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
Plood 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
ciramutances, 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 Illsurance Program.”


                                     p.     788
Honorable Mike Driscoll - Page 4      m-150)




                                   SUMMARY
              Han% County is authorized to regulate the building of
         structures over waterways within the jurisdiction of the Port of
         Houston Authority to tbe extent necessary to comply with the
         requirements of the National Flood Iusurance Program.




                                                DAN      MORALES
                                                Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RBNEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




                                     p.   789
