Railroad sues Wyoming Valley Sanitary Authority over stormwater fee

The Reading Blue Mountain & Northern Railroad Co. has filed a lawsuit against the Wyoming Valley Sanitary Authority attempting to end a stormwater fee on six of its rail properties.

Recently filed in the Luzerne County Court of Common Pleas, the litigation argues those six properties should not be subject to the fee because they fall outside “urbanized” areas.

For background, the fee stems from a federal pollution reduction mandate imposed on municipalities that require municipal separate storm sewer system, or MS4, permits because they have both urbanized areas with more than 1,000 residents as determined by U.S. Census data and drainage outlets that discharge stormwater directly into waterways without first being treated.

In the Wyoming Valley, 31 municipalities chose compliance through the authority’s regional stormwater program, funded by a fee based on non-absorbent impervious area. Sediment, nitrogen and phosphorus in the Susquehanna River and Chesapeake Bay must be reduced within five years under the mandate.

When the fee was implemented last year, authority officials said non-urban sections within each municipality would still be required to pay because the MS4 permits also include some municipal-wide mandates, such as mapping of all stormwater catch basins, swales and pipes.

As compensation, the authority automatically provided a 15% credit to all parcels outside urbanized areas.

Based in Port Clinton, Schuylkill County, the Reading Blue Mountain & Northern Railroad Co. asserts in its complaint the authority has no “legal or regulatory basis” to charge stormwater fees for non-urbanized properties because they are not subject to MS4 permitting requirements.

It points to Pennsylvania Department of Environmental Protection guidance directing municipalities to define permit areas as sections that drain to impaired waters and the MS4 conveyance system, eliminating or parsing out those that do not.

The complaint maintains the railroad company is not receiving any service for the fee because its non-urban properties do not discharge or drain into any stormwater infrastructure owned or operated by any municipality.

WVSA response

Authority legal counsel plans to file a reply within the required 20 days.

“WVSA intends to vigorously defend the lawsuit in accordance with governing laws,” the authority said in a statement Thursday.

The fee supports a regional program benefiting 31 local municipalities with properties located in both urbanized and non-urbanized areas, the statement said.

”In addition, WVSA has developed a comprehensive fee structure with multiple credit opportunities, which WVSA believes is in compliance with applicable legal standards,” the statement said.

Reading Blue Mountain & Northern is charged approximately $62,200 per year in stormwater fees on the six properties, the litigation says, noting the company has been paying the bills “under protest.”

The impacted properties along with the annual stormwater fee, according to information stated in the suit:

• 60-foot railroad right-of-way immediately adjacent to the Lackawanna River in Pittston, $1,318

• Pittston Railyard property along Coxton Road in Duryea, which is adjacent to the Susquehanna River and surrounded by a heavily vegetated forest, $29,453

• A densely forested parcel immediately adjacent to the Lackawanna River in Duryea and Pittston that includes a railroad row at the southern edge, $5,430

• Separate 60-foot railroad rows in forested areas of Hanover Township ($5,560), Jenkins Township ($7,675), and Plains Township ($12,720).

All six parcels are “well established, stabilized and vegetated” and do not make use of any nutrient-based fertilizers, the suit said.

Filed by Bala Cynwyd-based Manko, Gold, Katcher & Fox LLP, the litigation seeks a court order barring the authority from assessing a stormwater fee against the six properties. The privately-held Reading Blue Mountain & Northern offers both freight services and passenger excursion operations and owns and operates rail infrastructure in nine eastern Pennsylvania counties.

In total, around 76,000 parcels are charged a stormwater fee in the authority’s regional program, officials have said. It’s unclear how many parcels may fall in non-urbanized areas.

Officials in the 31 municipalities determined it would be more cost-efficient to participate in the authority’s regional plan instead of funding compliance individually through municipal real estate taxes. Municipalities face fines if they don’t meet the federal requirements.