Section 4: TxDOT and the NFIP
Anchor: #JOLHNHNLTexas and the NFIP
Texas as a State is a non-participating community within the NFIP, and TxDOT is an entity agency of the State of Texas. Therefore, the requirements of 44CFR60 do not apply to TxDOT and no SFHAs exist on TxDOT ROW. A TxDOT office may choose to assist an FPA within the office's ability, but a community's floodplain requirements are not binding on TxDOT because TxDOT is an agency of the State of Texas. The FPA may request or advise certain elements in the project design, but has no approval authority over TxDOT project design or placement.
A FIRM may show a TxDOT ROW crossing a community's FEMA mapped SFHA, but in fact the community's SFHA stops at one ROW line and continues after the other ROW line. Even if the ROW is within the limits of a municipality or a county, the TxDOT ROW is actually property of the State of Texas and is therefore “outside” of the municipality or county. The situation is analogous to a stream passing out of a municipality's corporate limits into a non-participating community and back into the participating community. Actions in the non-participating community do not fall under the purview of 44CFR60.
As mentioned in NFIP Roles: Participation, FEMA encourages communities to adopt ordinances and rules that are more stringent than the minimum (i.e. stricter criteria). These more restrictive technical criteria present a problem of equitable funding of projects among all communities. TxDOT cannot favor one community over another simply because one community has stricter criteria than the other community. A TxDOT office may choose to assist a local FPA within the office's ability, but a local community's floodplain requirements are not binding on TxDOT. There are instances where the local stricter criteria do not place a hardship on TxDOT. For example, there are times where TxDOT criteria call for a 2% AEP (50-year) bridge and the 1% AEP water surface coincidentally falls within the available freeboard. This is still considered a 2% AEP bridge, yet it can also be considered to meet a request for a bridge to pass the 1% AEP flow.
Anchor: #JGLEEMLITxDOT and Local Floodplain Regulations
Texas Attorneys General have ruled in a series of opinions [JM-117(1983); C-690(1966); JM-1035(1989)] that state agencies are prohibited from applying for permits from subordinate jurisdictions. Although the opinions were written originally to address the issue of electrical utilities and cities attempting to require TxDOT contractors to apply for permits for roadway illumination installations, the opinion applies equally to community floodplain permit requirements. A court decision speaking to this concept is City of Houston v. Houston ISD, 436 S.W. 2ND 568, at 572, “Properties of the State are excluded as a matter of law from the application of City building regulations.”
Anchor: #i1388307Permits versus FPA Notification
FPAs normally require permits for any work in the mapped floodplain in order to prevent any improper development and to track all activity and changes which will affect the floodplain. TxDOT recognizes that activities such as bridge and culvert construction or roadway overlays can have an effect on the floodplain, and that the FPA needs the information. Since TxDOT cannot apply for a permit, as discussed in “TxDOT and Local Floodplain Regulations,” TxDOT requires the designing office to send a copy of the plan set along with any and all supporting hydrologic and hydraulic computations and program files to the local FPA. (See FPA Notification Details.) The designer should place a note on the hydrologic plan sheet stating, “H&H files were sent to the local Floodplain Administrator ________name_________ on ___date____.” The date is the date the documents, plans, and files are sent to the local FPA.
Anchor: #i1388337Hydraulic Structures versus Insurable Structures
One source of confusion for the communities is 44CFR 60, Subpart B (section 60.11 - 13) titled Requirements for State Flood Plain Management Regulations, which applies to structures on State owned properties. Structure is defined in 44CFR59.1 as a walled, roofed building. Hydraulic structures such as bridges, culverts, and storm drains are neither included nor considered because for the purpose of the NFIP they are not insurable structures. Subpart B does apply to TxDOT office buildings, maintenance or repair shops, and highway rest area facilities.
Anchor: #KIMIKNENOff System Structures
Bridges and culverts that belong to a county or municipality are not on the TxDOT ROW and are therefore within a community's floodplain. The FPA may attempt to require a permit from TxDOT when TxDOT controls or oversees the funds used to repair or replace structures in the community's floodplain. The community is responsible for any permits because the structure belongs to the community. In this situation, TxDOT is acting on the behalf of the community as its consultant. Just as the community would not require a consulting firm it hired to obtain and be responsible for the permits, the community can not hold TxDOT responsible for these same permits.
Anchor: #NFQHIFJMLiability
TxDOT project engineers and contract managers should understand that compliance with the NFIP and coordination with the FPA does not relieve TxDOT of the requirements of civil law. The Texas Water Code section 11.086 prohibits diversion or impoundment which will harm another property. Roadway and bridge designers must pay attention to surrounding conditions of building placements, property access, and runoff patterns to assure that the project will not cause adverse impacts to adjacent properties. Every designer for TxDOT has an obligation not to put TxDOT in a position of liability due to their design. The need for documentation that supports and protects TxDOT from lawsuits or liability claims is the reason for the inclusion of the required hydrologic and hydraulic study details in the plan set as engineering documents on sealed sheets.