Municipal Corner

Without evidence in the statutes of the Legislature’s clear and unmistakable intent to preempt all local ordinances affecting dams, a court would likely conclude that a local regulation will be invalid only to the extent inconsistent with a state regulation. Tex. Att’y Gen. Op. KP-0309 (2020).

The Honorable Lyle Larson, Chair of the Committee on Natural Resources for the Texas House of Representatives (“Chair”), requested an opinion by the Attorney General (“AG”) as to whether state or federal law preempts the application of municipal development ordinances to a water control and improvement district’s construction and maintenance of dams within the municipality’s city limits or extraterritorial jurisdiction (“ETJ”). Providing further context, the Chair explained that the identified water control and improvement district (“District”) is responsible for the operation and maintenance of 23 flood control
structures within its jurisdiction, which have evolved from rural, low-hazard dams at the time of construction to now having high-hazard risk classifications in what has become rapidly-developing areas.

The facts giving rise to the issue here stem from a District project to modernize one of its dams. At the urging of the applicable municipality (“City”), the District submitted a development plan application for its dam project with the intention of providing clarity and answering any questions from the City’s staff. Notably, the District maintained that the City does not actually have the authority to require a site plan or permit for their project, as those activities are specifically regulated by the Texas Commission on Environmental Quality (“TCEQ”). Conversely, the City maintained it has the authority to require the District to comply with City development regulations to the extent they do not unreasonably interfere with the District’s project. The Chair, on behalf of the District, therefore requests clarification as to whether the District’s specific dam building activities, including “designing, constructing, reconstructing, modifying, enlarging, rehabilitating, altering, or repairing of a dam” are preemptively controlled by state and federal authorities or whether the District must also comply with the City’s development regulations.

The Chair’s question requires addressing the effect of potentially differing rules from separate governing bodies that have overlapping jurisdiction and authority. The AG explains the Texas Constitution restricts local authority in this instance wherein it provides that a municipal ordinance may not conflict with state law. See Tex. Const. art. XI, § 5(a)(“[N]o…ordinance passed under [a city] charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State.”). The AG further notes a home-rule municipality acquires its powers from the Texas Constitution and possesses the “full power of local self-government,” and looks to state law not for grants of power but only for limitations. Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016). The Texas Supreme Court has provided further explanation, as follows:

“[a] statutory limitation of local laws may be express or implied, but the Legislature’s intent to impose the limitation must appear with unmistakable clarity…Absent an express limitation, if the general law and local regulation can coexist peacefully without stepping on each other’s toes, both will be given effect or the latter will be invalid only to the extent of any inconsistency.” City of Laredo v. Laredo Merchs. Ass’n, 550 S.W.3d 586, 593 (Tex. 2018).

A preemption analysis between the City’s development regulations and state law on dams would therefore begin with determining whether the state law limits the City’s authority “with unmistakable clarity.” If it does, a court would then determine whether the City ordinance at issue falls within the scope of the state law regulatory framework on dams. As the applicable state agency, the TCEQ regulatory framework would preempt the City’s ordinance if it came within the TCEQ’s ambit by attempting to regulate the same activity. Separately, if the court finds no clear and unmistakable legislative intent for state preemption of local laws on dams, then the court would determine the extent to which the state and local provisions can coexist.

What considerations would the court take into account to make such a
determination? A court’s objective in construing a statute is to give effect to the legislative intent, and the court begins its analysis by focusing on the plain language of the text in light of the statute as a whole. Texas Water Code
§ 5.013(a)(5) gives the TCEQ “general jurisdiction over…the adoption and enforcement of rules and performance of other acts relating to the safe construction, maintenance, and removal of dams.” Pursuant to this legislatively-granted authority, the TCEQ has promulgated rules on dams, including a requirement for owners of certain existing dams slated for reconstruction, modification, enlargement, rehabilitation, alteration, or repair to “submit final construction plans and specifications, which are sealed, signed, and dated by a professional engineer, to the executive director [of the Commission] for review and approval before commencing” with the project. Id.

While state law does therefore explicitly regulate dams, it is unlikely this language rises to the level of restricting local authority. The pertinent provisions in chapters 5 and 12 of the Water Code contain no express limitations on the local regulation of dams. This contrasts with instances of statutes in other contexts where the Legislature has made unmistakably clear its intent to preempt local ordinances; for example, the Texas Solid Waste Disposal Act states, “[a] local government or other political subdivision may not adopt” certain ordinances, which evidences a “clear” intent to preempt local law. See, e.g., Laredo Merchs. Ass’n, 550 S.W.3d at 593.

Drawing on this comparison, the AG opines that without evidence in the statutes of the Legislature’s clear and unmistakable intent to preempt all local ordinances affecting dams, a court would likely conclude that the local regulation will be invalid only to the extent inconsistent with a state regulation.

This opinion serves as a helpful reminder to municipalities that they generally have full governmental authority within their jurisdictions. State law may restrict such authority when doing so with unmistakable clarity, but even then municipal promulgations will likely only be invalid to the extent they are inconsistent with state law.

“Municipal Corner” is prepared by Reid Barnes. Reid is an Associate in the Firm’s Energy and Utility Practice Group. If you would like additional information or have questions related to these or other matters, please contact Reid at 512.322.5811 or rbarnes@lglawfirm.com.

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