Wyoming Valley Sanitary Authority responds to railroad’s stormwater suit

The Wyoming Valley Sanitary Authority is seeking court dismissal of a railroad company’s stormwater fee legal challenge, records show.

Filed by the Reading Blue Mountain & Northern Railroad Co. in August, the litigation argues six railroad properties should not be subject to the fee because they fall outside “urbanized” areas.

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.

Thirty-one Wyoming Valley municipalities chose compliance through the authority’s regional stormwater program, funded by a fee based on non-absorbent impervious area.

When the fee was implemented last year, authority officials said non-urban sections within each municipality would still be required to pay — at a reduced rate — because the MS4 permits also include some municipal-wide mandates.

In a response to the suit filed in the Luzerne County Court of Common Pleas this week, the authority presented preliminary objections that it says warrant the litigation’s dismissal.

A synopsis of some suit claims and opposition arguments presented in the new filing:

Suit: The authority assesses the fee in a manner not permitted under four municipal codes and the Municipal Authorities Act.

Response: It is “undisputed” that the authority is governed by the act regarding the way it set up and administered the fees, and the municipal codes have “no bearing” on whether the authority is complying with the act.

Suit: The railroad’s non-urban properties do not benefit from the authority’s stormwater services because they allegedly do not directly discharge into any municipal MS4 infrastructure.

Response: The act “expressly” permits the authority to charge a fee for its comprehensive stormwater management program and does not limit the fee to properties that discharge into MS4s.

This regional program provides services that benefit all property owners — urbanized and non-urbanized — within participating municipalities, including street sweeping, catch basin repairs/cleaning, reimbursements to municipalities for projects they identify and mapping of all areas.

Under the act, the authority is authorized to charge “reasonable and uniform rates” that are “based in whole or in part on property characteristics.”

Courts have recognized that a stormwater fee based on the amount of a property’s impervious area is the “best and most accurate measure of the level of demand a property places on the stormwater system.”

The authority automatically provided a 15% credit to all parcels outside urbanized areas as recognition they “may place less demand on the stormwater system.”

Suit: The stormwater fee constitutes an unauthorized tax.

Response: Under the act and relevant caselaw, it is “well settled that a stormwater fee is not an ‘unauthorized tax’ as plaintiff asserts.” The authority lacks “any sort of taxing power” as a state municipal authority.

As authorized by the act, the fee is appropriately based on the amount of impervious area and includes the credit policy reducing the fee to “further ensure the fee is reasonably proportional to the benefit received.”

“Wyoming Valley Sanitary Authority’s stormwater fee is exactly what it purports to be, a service charge or user fee.”

The authority’s response also said its fee was methodically planned and cannot be “considered arbitrary or capricious.”

“Finally, given that the General Assembly has realized the critical importance of stormwater management and achieving regulatory compliance, and has further expressly granted local government a means of funding programs to achieve those goals, the railroad cannot claim that the authority’s imposition of the fee is not rationally related to legitimate governmental interest,” it said.

The authority’s response was filed by Attorneys Edward J. Ciarimboli, of Kingston, and E. Lee Stinnett II, of Harrisburg

Based in Port Clinton, Schuylkill County, the Reading Blue Mountain & Northern Railroad Co. is charged approximately $62,200 per year in stormwater fees on the six properties, its litigation said, noting the company has been paying the bills “under protest.”

The impacted properties: a 60-foot railroad right-of-way immediately adjacent to the Lackawanna River in Pittston; the Pittston Railyard property along Coxton Road in Duryea; a parcel immediately adjacent to the Lackawanna River in Duryea and Pittston that includes a railroad row at the southern edge; and separate 60-foot railroad rows in forested areas of Hanover, Jenkins and Plains townships.

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.