A construction worker walks along sitting water which has delayed the project due to heavy frequent rains. Photo by Scott Ball.
A construction worker walks along a commercial development project that was delayed due to flooding.

When someone wants to build a residential or commercial structure in San Antonio, no matter the size or neighborhood, the entire watershed is considered – by law.

Impervious cover – those structures and surfaces that interfere with rainwater’s natural ability to reach the ground – plays a critical role in the built and natural environment’s capacity to mitigate flooding and, in San Antonio’s case, recharge the precious caverns of the Edwards Aquifer.

The quantity and quality of water in this South Texas city is essential to its function and future, City leaders have said, especially when it floods. Houston’s deadly Hurricane Harvey in August 2017 reminded cities all over the United States of the importance of effective land and water management. But the ability to build and grow – and attract business and talent – is also vital to a city’s future.

This eternal balancing act between development and sustainability will likely be a constant and controversial conversation. Mayor Ron Nirenberg called impervious cover regulations a political “Pandora’s box” last year, and the issue resurfaced last week at the request of Councilwoman Ana Sandoval (D7).

“What’s really important to me is making sure that District 7 residents are out of the floodplain [and] that they’re not experiencing any additional drainage issues that can be avoided with responsible development,” Sandoval said Thursday after the Council’s Community Health and Equity Committee meeting.

Of the five City Council members on the committee, only she and Councilman Greg Brockhouse (D6) attended. On the agenda that day, in addition to an update on the City’s Climate Action Plan, was a fee that developers can pay instead of installing flood mitigation features on or near their projects.

“It’s my job to dig through the processes we have right now – and I’m doing it out in the open – to make sure I understand them and see where there could possibly be modifications or improvement,” Sandoval said, acknowledging that such conversations may make developers nervous about increased fees. “It’s going to be a tough conversation.”

Brockhouse, too, was wary of the conversation. He doesn’t want to see fees raised, he said, especially if it discourages development.

“[The City has a] goal of building rooftops [so we can’t] over-fee and over-regulate people’s opportunities to build homes,” he said. “It’s not just a house, it’s a job – it’s bricklayers, it’s plumbers, it’s electricians, it’s the entire machinery of our business world. … You can either inhibit or encourage that opportunity.”

To comply with City code, developers or property owners must work to mitigate flooding impacts of impervious cover in their projects. In parking lots, buildings, and streets with impervious cover, rainwater flows downhill or in drainage systems instead of seeping into the ground. Drainage pipes only have so much capacity, so heavy rains can potentially create flooding.

Developers can choose to trap and treat the water on-site or off-site with detention ponds or other low-impact development techniques, contribute to a regional mitigation project, or pay a fee – based on the square footage of impervious cover – in lieu of that work.

However, in so-called mandatory detention areas, where the floodplain is near capacity, the fee-in-lieu-of – often referred to as “FILO” by City officials and developers – is not accepted.

In the areas shaded in yellow above, fee-in-lieu-of impervious cover mitigation is not accepted.
In the areas shaded in yellow above, fee-in-lieu-of impervious cover mitigation is not accepted. Click here to download a full size PDF. Credit: Courtesy / City of San Antonio

“Historically, there has been too much flooding [in those areas],” Nefi Garza, assistant director of the City’s Transportation and Capital Improvements department, told Brockhouse and Sandoval. Any development in especially flood-prone areas of the watershed map would cause stormwater runoff to exceed the capacity of the existing channels in the so-called “100-year ultimate” floodplain.

“Any little increase [of impervious cover] exacerbates the problem,” he said, adding that there are some areas of town – where development is incentivized or there is low risk of flooding – that require neither the fee nor mitigation (see fee structure in the image below).

The Fee-In-Lieu-Of Ordinance, created by San Antonio City Council in 1997 and slightly modified since, has collected $89 million in fees, Garza said. About $70 million has been spent on 44 regional stormwater mitigation projects.

That money helps supplement other sources of funding for drainage and street projects including federal grants, the San Antonio Water System’s utility fee (which all residential and commercial customers pay), bond programs (public debt), and Bexar County Flood Control funds. The 2017 voter-approved bond includes $134 million in drainage and flood control projects for the next five years. The FILO stormwater mitigation fund is expected to collect $6 million in 2018.

The fee-in-lieu-of stormwater mitigation fund is expected to collect almost $7 million in 2019.
The fee-in-lieu-of stormwater mitigation fund is expected to collect almost $7 million in 2019. Credit: Courtesy / City of San Antonio

Who pays for what is “the biggest question right now,” said Sandoval, who chairs the committee and has an extensive background in climate and health sciences. “How much do we need to invest in drainage, and are we going to put it all on bonds and stormwater fees or are we going to go back and look at FILO as well?”

The FILO fee rate as it stands today does not impede development on a large scale, said Rob Killen, a land use attorney and vice president of local law firm Kaufman & Killen that represents developers in San Antonio.

“Development is still happening, so you cannot say it’s prohibitive,” Killen said, but other fees and land costs associated with developing in San Antonio may add up to incentivizing business to go elsewhere – to towns such as Schertz or Seguin, for example.

“[But] I can’t point to the stormwater fees as having discouraged any one particular project,” Killen, who also attended the committee meeting Thursday, told the Rivard Report. “What we don’t want to do is raise fees to an unreasonable level where we’re driving people out of the city.

“I think it’s critical for everyone … to monitor this issue and be aware of it and be engaged in the conversation.”

The City's FILO program was created by Ordinance in 1997 as a mitigation option for eligible private development to pay a Fee In-Lieu-of (FILO) on site stormwater detention.
The City’s FILO program was created by Ordinance in 1997 as a mitigation option for eligible private development to pay a Fee In-Lieu-of (FILO) on site stormwater detention. Credit: Courtesy / City of San Antonio

Placing that entire burden on developers is probably not sustainable – but neither is placing it on taxpayers, said Stephen Graham, assistant general manager of the San Antonio River Authority.

“I would say there are things to be done [regarding FILO], but it really needs to have full community input,” he said. “One train of thought is that the fee is too low and it’s used too much and it should be the last option – it should be cheaper for you to do on-site mitigation.

“There are others … who say that we need to keep these fees as low as possible [to encourages growth]. Are you subsidizing development or are you making development actually carry their full costs or is it something in the middle?”

The Greater Edwards Aquifer Alliance, an environmental advocacy group focused on water issues in Central Texas, has proposed that all construction projects detain all runoff from small storms on-site among other more strict regulations.

The hard-fought 1997 ordinance and subsequent updates emerged through stakeholder debates, Graham added. Opportunities to have another conversation sooner rather than later will materialize with more data available about climate and rainfall.

The National Oceanic and Atmospheric Administration (NOAA) is developing new floodplain maps and precipitation frequency for Texas based on updated historic rainfall trends.

How many San Antonian property owners will be considered within the new floodplain boundaries is unclear, Garza said, but the number of properties that will need flood insurance through FEMA is expected to increase.

The Atlas 14 map is expected to be completed for Texas, known as “Volume 11,” in October this year.

“Wherever that 100-year floodplain line is now, it’s going to move,” Sandoval said, placing more residents inside that at-risk flood boundary.

“I imagine it will trigger a change in our mandatory detention areas,” she added.

In 2020, another opportunity to address impervious cover issues will surface when the City’s Unified Development Code will be up for review, Graham said. The River Authority and the City are working on potential code revisions related to stormwater runoff in specific areas.

The governmental agency is also formulating flood maps that take into consideration existing impervious cover and streets for an even more accurate flood prediction tool. The River Authority and the City have found that different areas need different flood mitigation techniques based on soil type, typography, and other factors, Graham said.

“The one size fits all [approach] may not be the answer,” he said.

During a post-Harvey panel discussion about water management in November, Nirenberg said it was time to stop ignoring the “seriousness of the situation” regarding flooding and climate change.

Nirenberg could not be reached for comment on Friday. City officials are not considering or discussing proposals regarding impervious cover or related fees at this time.

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Iris Dimmick

Senior Reporter Iris Dimmick covers public policy pertaining to social issues, ranging from affordable housing and economic disparity to policing reform and workforce development. Contact her at iris@sareport.org