Norfolk Southern sues city of Roanoke for relief from storm water levy

[NS Newsfeed]

Norfolk Southern Corp. has asked a federal judge for consent to not pay hundreds of thousands of dollars in Roanoke utility fees for storm water management.



The lawsuit filed Tuesday is the railroad's second effort to avoid contributing to a citywide effort to clean storm water runoff before it pollutes streams, a program that subjects property owners to biannual fees on impervious surfaces whose runoff must be managed under state and federal stream-protection laws.



The General Assembly last month declined to exempt most railroad-owned real estate from Roanoke's two-year-old fee and any fee like it elsewhere in the state, for any railroad.



District Judge Glen Conrad will evaluate Norfolk Southern's request for an injunction. City Attorney Dan Callaghan declined to comment Wednesday, saying he hadn't received an official copy of the action.



Norfolk Southern contends that the levy, which the city calls a utility fee, actually constitutes a tax prohibited under a 1976 federal law against unfair taxation of railroads, according to its lawsuit.



While technical in its arguments over the tax-or-fee question, the lawsuit's premise is that railroad track beds and yards covered with white stones known as ballast are pervious to rain, like any lawn. The city doesn't levy the storm water fee for square footage covered by lawns because rain and snowmelt percolate into lawns.



The railroad cited the Railroad Revitalization and Regulatory Reform Act of 1976, and in particular its ban on acts that "unreasonably burden and discriminate against interstate commerce," in arguing its case.



"If it is green it is excluded," reads the lawsuit. "But ballasted railroad property is also pervious. Ballasted railroad property is similarly situated to lawns. In fact, the science of storm water run-off shows that ballasted railroad property is at least as pervious and can even be more pervious than lawns. Notwithstanding this inescapable similarity, Roanoke chooses to treat railroad pervious property differently and less favorably than all other similarly situated property in the city in the assessment of the storm water control tax."



City officials have conceded that ballast packed around train tracks does drain, and the fee structure awards a credit for that. But the ground beneath the ballast is normally compacted and doesn't shed water well at all, city officials have said. Crews try to achieve compaction equal to 95 percent of the ground's maximum density and groom it with a crown to promote runoff before setting tracks, the city has said.



The railroad owns more than 500 acres of real estate in the city, 352 acres of which is covered in ballast, its filing said. In response to its first storm water utility bill of 2016, the railroad earlier this month paid $118,636.35 that it did not dispute, but declined to pay $194,388 levied on its ballasted property, the suit said.