Can a Texas city enforce its development rules on a water district building or rebuilding a dam, or does state law preempt that?

Plain-English summary

The chair of the House Committee on Natural Resources asked, on behalf of the Upper Brushy Creek Water Control and Improvement District, whether the City of Austin could enforce its development ordinances on the District's dam-building activities, or whether state and federal authorities preemptively regulate that work. The District operates 23 flood-control structures, some originally built as low-hazard dams in rural areas that are now in fast-developing areas and carry a high-hazard classification. The District started a 2000 program to modernize its dams, including Dam #8, and submitted a site development plan application to the City for that project, but it took the position that its dam work does not fall under the City's permitting process and is instead regulated by the Texas Commission on Environmental Quality under chapter 299 of the Texas Administrative Code. The City, citing water-quality and drainage concerns, took the position that it could require compliance with its development rules so long as they did not unreasonably interfere with the project.

The AG laid out the home-rule preemption framework. A home-rule city like Austin has the full power of local self-government and looks to state law only for limits on its power, but the Legislature can limit or withdraw that power by general law, and its intent to do so must appear with unmistakable clarity. The mere fact that the State has entered a field does not automatically preempt city regulation; local regulation that is ancillary to and in harmony with the state scheme is acceptable, and a conflicting local rule is invalid only to the extent of the inconsistency. So a court would first ask whether the state dam law limits the City's authority with unmistakable clarity, and if so, whether the specific city ordinance falls within the state regulatory framework.

The AG then examined the dam statutes. The Legislature gave the Commission general jurisdiction over the safe construction, maintenance, and removal of dams (Water Code section 5.013(a)(5)) and directed it to make and enforce rules for dam safety (section 12.052(a)), and the Commission adopted chapter 299 rules requiring engineer-sealed construction plans and Commission approval before certain dam projects begin. But the AG found that the Water Code provisions authorizing this framework contain no express limitation on local regulation of dams. By contrast, the AG noted, when the Legislature wants to preempt local ordinances it says so clearly, as it did in the Solid Waste Disposal Act and the Clean Air Act. Without that clear and unmistakable intent, a court would likely conclude that a local dam-related regulation is invalid only to the extent it is inconsistent with a state regulation.

Finally, because the request did not identify a specific City provision and referred broadly to the City's development rules, and because whether a particular rule conflicts can turn on specific facts, the AG explained that a court, as a fact-finding body, is best suited to decide whether the state and local provisions can both be given effect.

Currency note

This opinion was issued in 2020. 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 mentioned here.

What the opinion meant for those who asked

For the water district, the opinion's reading at the time was that state dam-safety law did not give it a blanket exemption from the City's development ordinances; TCEQ's authority over dam safety did not, by itself, sweep aside local rules. For the City of Austin, the opinion meant its development regulations could apply to the District's dam work, but only to the extent they did not conflict with the Commission's chapter 299 framework; a conflicting rule would be invalid only as to the inconsistency. For both sides, the opinion declined to resolve the actual dispute: it did not identify which, if any, specific City rule was preempted, because the request pointed to no particular ordinance and the conflict question can depend on facts a court must find. On the federal-preemption piece, the AG noted that the National Inventory of Dams lists Dam #8 as state-regulated rather than federally regulated.

Common questions

Q: Does state dam-safety law override all city development rules?
A: No. The AG concluded the Water Code provisions giving TCEQ dam-safety authority contain no clear language preempting local regulation, so a city rule is invalid only to the extent it is inconsistent with a state regulation.

Q: How does a court decide if a city ordinance is preempted here?
A: It first asks whether the state law limits the city's power with unmistakable clarity, and if so, whether the specific ordinance falls within the state regulatory framework. Without clear preemptive intent, the focus is whether the state and local rules can coexist.

Q: Did the AG decide whether Austin's rules conflict with the state dam rules?
A: No. The request did not point to a specific city provision, and whether any particular rule conflicts can depend on facts, which the AG said a court is best suited to determine.

Q: What about federal regulation of the dam?
A: The AG noted the National Inventory of Dams lists Upper Brushy Creek Dam #8 as a state-regulated, not federally regulated, dam.

Background and statutory framework

The home-rule preemption analysis rested on Texas Constitution article XI, section 5(a) and on Town of Lakewood Village v. Bizios, 493 S.W.3d 527 (Tex. 2016), and City of Laredo v. Laredo Merchants Ass'n, 550 S.W.3d 586 (Tex. 2018), which set the "unmistakable clarity" standard for limiting home-rule power. The statutory-construction approach came from In re B.C., 592 S.W.3d 133 (Tex. 2019), and Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019). The dam-safety authority is in Water Code sections 5.013(a)(5) and 12.052(a), implemented through 30 Texas Administrative Code sections 299.1, 299.21, and 299.22. The AG contrasted statutes the courts have found clearly preemptive in City of Laredo (Solid Waste Disposal Act), BCCA Appeal Group, Inc. v. City of Houston, 496 S.W.3d 1 (Tex. 2016) (Clean Air Act), and FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000). State v. DeLoach, 458 S.W.3d 696 (Tex. App.-San Antonio 2015, pet. ref'd), supplied the same-activity inquiry, and the AG cited its own Opinion KP-0239 (2019) for the limit on resolving fact questions through the opinion process.

Citations and references

Constitutional, statutory, and regulatory provisions:

• Tex. Const. art. XI, § 5
• Tex. Water Code § 5.013; § 12.052
• 30 Tex. Admin. Code §§ 299.1, 299.21, 299.22

Cases:

• Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527 (Tex. 2016)
• City of Laredo v. Laredo Merchs. Ass'n, 550 S.W.3d 586 (Tex. 2018)
• State v. DeLoach, 458 S.W.3d 696 (Tex. App.-San Antonio 2015, pet. ref'd)
• In re B.C., 592 S.W.3d 133 (Tex. 2019)
• Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019)
• BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1 (Tex. 2016)
• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000)

Prior AG opinion referenced: KP-0239 (2019).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0309
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0309.pdf

Original opinion text

May 21, 2020

The Honorable Lyle Larson
Chair, Committee on Natural Resources
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. KP-0309

Re: Whether state or federal law preempts application of municipal development ordinances to a water control and improvement district's construction and maintenance of dams (RQ-0316-KP)

Dear Representative Larson:

You ask about the City of Austin's "authority to enforce its development ordinances on the dam building activities of the Upper Brushy Creek Water Control and Improvement District [the "District"] where these activities occur within [the City's] extraterritorial jurisdiction or within its city limits," and whether such activities are "specifically and preemptively regulated by state and federal authorities."[1] As background, you tell us the District is responsible for the operation and maintenance of 23 flood control structures within its jurisdiction, which were "[b]uilt originally as low-hazard dams in rural areas at the time of construction" but which "are now in rapidly-developing areas and have a high-hazard risk classification." Request Brief at 1. With respect to those structures, you describe a dam safety program the District developed in 2000 in response to certain changes in federal and state law that imposed more stringent design standards on dams to protect public safety and property. Id. at 1-2. As part of the program, the District established a plan "to modernize all of the District's dams," including the dam at issue, Dam #8. Id. at 3. You tell us "the District submitted a Site Development Plan Application to the City of Austin [the "City"] regarding the update of Dam #8" in 2018 at the City's urging, which was intended to "give clarity to the City's staff and to answer" their questions regarding the project.[2] Id. at 4.

However, the District believes that its dam building activities do "not fall under the regulatory control or permitting process of the City" and that the District is not required "to actually obtain a Site Development Plan or Permit from the City" for Dam #8.[3] Id.; see also District Brief at 4. Instead, the District posits that such activities are "specifically regulated by the Texas Commission on Environmental Quality [the "Commission"] pursuant to Title 30, Part 1, Chapter 299 of the Texas Administrative Code." District Brief at 1. In briefing submitted to this office, the City states it "understands that the District is bound by state law and regulations specifying certain design and construction requirements for dams." City Brief at 1. But, citing water quality issues such as sediment and stormwater discharge as well as drainage regulations impacting federal disaster funding in the event of a flood, the City maintains it "can require that the District comply with City development regulations to the extent that the City regulations do not unreasonably interfere with the dam modernization project." City Brief at 1, 3-4. On behalf of the District, you ask whether its dam building activities, specifically "designing, constructing, reconstructing, modifying, enlarging, rehabilitating, altering, or repairing of a dam" are "preemptively controlled by [s]tate and [f]ederal authorities" or whether the District must also comply with the City's development regulations. Request Brief at 4.

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 City is a home-rule municipality that acquires its powers from the Texas Constitution and possesses the "full power of local self-government," looking to state law "not for grants of power, but only for limitations on" its power. Town of Lakewood Vill. v. Bizios, 493 S.W.3d 527, 531 (Tex. 2016) (quotation marks omitted). While a home-rule city thus has all power "not denied by the Constitution or state law," the Legislature may nonetheless "limit or withdraw that power by general law." City of Laredo v. Laredo Merchs. Ass'n, 550 S.W.3d 586, 592 (Tex. 2018). As explained by the Texas Supreme Court,

[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. The mere entry of the state into a field of legislation . . . does not automatically preempt that field from city regulation. Rather, local regulation, ancillary to and in harmony with the general scope and purpose of the state enactment, is acceptable. 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.

Id. at 593 (footnotes and quotation marks omitted). Thus, a court would begin its preemption analysis of the City's development regulations and state law on dams by determining whether the state law limits the City's authority "with unmistakable clarity."[4] Id. 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. Id. at 593-94; see also State v. DeLoach, 458 S.W.3d 696, 698 (Tex. App.-San Antonio 2015, pet. ref'd) ("We must . . . determine whether the ordinance and the [state law] are attempting to regulate the same activity."). The City's ordinance would be preempted if it fell within the ambit of the Commission's regulatory framework. If, however, a court finds no clear and unmistakable legislative intent for state law on dams to preempt local law, then the court's analysis would focus on the extent to which the state and local provisions can coexist.

A court's objective in construing a statute is to "determine and give effect to legislative intent as expressed by the statute's plain language." In re B.C., 592 S.W.3d 133, 136 (Tex. 2019). When construing a statute to determine legislative intent, courts start with the plain language of the text, construing it "in light of the statute as a whole." Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019). The Legislature gave the Commission "general jurisdiction over . . . the adoption and enforcement of rules and performance of other acts relating to the safe construction, maintenance, and removal of dams." TEX. WATER CODE § 5.013(a)(5). As part of that authority, the Legislature directed the Commission to "make and enforce rules and orders" and "perform all other acts necessary to provide for the safe construction, operation, maintenance, repair, removal, and emergency management of dams located in this state." Id. § 12.052(a). Accordingly, the Commission promulgated rules in chapter 299 of the Texas Administrative Code applicable "to design, review, and approval of construction plans and specifications; and construction, operation and maintenance, inspection, repair, removal, emergency management, site security, and enforcement of dams" meeting certain criteria, including those with a "high- or significant-hazard dam" classification. 30 TEX. ADMIN. CODE § 299.1(a)(3) (2020) (Tex. Comm'n on Envtl. Quality, Applicability). The rules require owners of certain[5] 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. § 299.22(a)(1) (Review and Approval of Construction Plans and Specifications); see also id. § 299.22(b)(2) (addressing required content of such plans and specifications).[6] "The executive director shall review the final construction plans, specifications, and engineering reports and plans according to the most current version, at the time of the design, of the agency's Design and Construction Guidelines for Dams in Texas." Id. § 299.22(e)(1) (Review and Approval of Construction Plans and Specifications). Once the Commission's executive director issues approval to a dam owner, the project must commence within four years or it will be subject to reapproval. Id. § 299.22(f)(1).

However, the statutory provisions in chapters 5 and 12 of the Water Code authorizing this regulatory framework of dam projects contain no express limitations on the local regulation of dams. See TEX. WATER CODE §§ 5.013(a)(5), 12.052(a). In contrast, the Legislature in other contexts has made unmistakably clear its intent to preempt local ordinances. See, e.g., Laredo Merchs. Ass'n, 550 S.W.3d at 593 (Texas Solid Waste Disposal Act stating that "[a] local government or other political subdivision may not adopt" certain ordinances evidenced a "clear" intent to preempt local law); BCCA Appeal Grp., Inc. v. City of Houston, 496 S.W.3d 1, 13 (Tex. 2016) (section 382.113 of the Texas Clean Air Act "unmistakably expresses the Legislature's desire to preempt any ordinance 'inconsistent' with the Act or with a [Commission] rule or order"); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact laws effectuating its intent). 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.

You do not identify a specific local provision against which to compare the Commission's dam regulatory framework but instead refer broadly to the City's "rules, regulations, ordinances, and/or codes regarding 'development.'" Request Brief at 4. Moreover, whether any particular City development regulation is inconsistent with the Commission's regulatory framework may require the consideration of specific facts, which this office cannot determine through the opinion process. Tex. Att'y Gen. Op. No. KP-0239 (2019) at 2. As a fact-finding body, a court is best suited to consider whether the state and local provisions at issue could both be given effect.

S U M M A R Y

The Legislature made the Texas Commission on Environmental Quality responsible for dam safety through subsections 5.013(a)(5) and 12.052(a) of the Water Code. However, 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.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

BECKY P. CASARES
Assistant Attorney General, Opinion Committee

[1] See Letter & attached Brief from Honorable Lyle Larson, Chair, House Comm. on Natural Res., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Dec. 4, 2019), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2019/pdf/RQ0316KP.pdf ("Request Letter" & "Request Brief," respectively).

[2] The City of Austin informs us that the "Dam #8 modernization project [is] located within the City's extra territorial jurisdiction." Brief from Ms. Anne L. Morgan, City Att'y, City of Austin at 1 (Jan. 3, 2020) (on file with the Op. Comm.) ("City Brief").

[3] Brief from Mr. Dan M. Gattis, Gattis Law Firm, PC, on behalf of the District at 4 (Jan. 6, 2020) (on file with the Op. Comm.) ("District Brief").

[4] While you ask also about potential preemption by federal law, the National Inventory of Dams, a national database of dams authorized by Congress and maintained by the U.S. Army Corps of Engineers, lists Upper Brushy Creek Dam #8 as a state-regulated, not federally-regulated, dam. See https://nid.sec.usace.army.mil/ (select "General Public" and Search Type "Name of Dam" search "Upper Brushy Creek WS SCS Site 8 Dam, Williamson, TX").

[5] See 30 TEX. ADMIN. CODE § 299.21 (Tex. Comm'n on Envtl. Quality, Applicability) (describing applicability of construction requirements to dams based on various criteria).

[6] Among other items, the plans and specifications must "include language, or design criteria, that requires the proposed contractor to develop a Storm Water Pollution Prevention Plan and submit a Notice of Intent (NOI) for coverage under the State of Texas Construction General Permit (TXR150000), if applicable." Id. § 299.22(a)(3).