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.