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2 2. If a community is not participating in the flood insurance program, there can be no Federal assistance to build or acquire a building in the lOO-year floodplain. This in- cludes VA and FHA backed mortgages, community development block grant monies to build or acquire structures, flood insurance, EDA asaistance, etc. It does not include conventional mortgages and, thus, such mortgages are not prohibited in floodplains of nonparticipating communities. -- 3. The base flood elevations (elevations of the lOO-year flood) determine the elevation to which the lowest floor of all new residential construction in the floodplain must be built. 4. The flood elevations also determine the actuarial flood insurance rates for all new construction in the floodplain. CONSTITUTIONAL ISSUES The precedent setting case for the National Flood Insurance Program is Texas Landowners Rights Association v. Harris, 453 F. Supp. 1025 (1978), aff'd, 598 F.2d 311 (1979), cert denied, 444 U.S. 927 (1980). Texas Landowners determines that the NFIP is constitutional. The plaintiffs were the State of Missouri, 40 communities and 30 landowners and associations. They attacked the NFIP on 3 grounds: (1) they asserted that the land use and building code criteria were a usurpation of the States' land use authority and therefore a violation of the Tenth Amendment; (2) they contended that the land use requirements resulted in a taking of property without compen- sation in violation of the Fifth and Fourteenth Amendments; and (3) they alleged that the NFIP provides inadequate due process protections in violation of the Fifth and Fourteenth Amendments. .. The District Court for the District of Columbia rejected all three of plain- tiffs' assertions. The court held that the flood insurance program was a voluntary Federal benefit program, not a mandatory regulatory program, and therefore is not a violation of the Tenth Amendment. The States and local communities could decide between participating in the program or foregoing the Federal benefits. The program is therefore within the limits of the Tax and Spend, and General Welfare Clauses of the Constitution. The court also held that the program was not a taking of property without compensation. Neither the diminution in land value resulting from the lack of Federal assistance in a non-participating community, nor the decrease in land values resulting from land use reatrictions in a participating comwlnity, amounts to an unconstitutional taking of property without com- pensation. This is significant for local communities in their defense of floodplain management ordinances based on the NFIP regulations. On their face, the regulationa do not result in a taking of property. Lastly, the court found that the program provides adequate due process pro- tection as it fits well within the quasi-legislative decisionmaking process. ..