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2018 Railroad Environmental Conference: Local Stormwater Charges

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A presentation on local storm water charges and what running your rail through a city might cost you.

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2018 Railroad Environmental Conference: Local Stormwater Charges

  1. 1. Antea USA, Inc. Railroad Environmental Conference October 23 & 24, 2018 Local Stormwater Charges: What Running Your Rail Through a City Might Cost You Brent Azzo, Associate Engineer, Genesee & Wyoming Fred Schesny, Engineer Real Estate, Norfolk Southern Lupe Valdez, Director Public Affairs, Union Pacific Mark Austin, Director Corridor Services, CSX Transportation Peter T. Masson, Consultant, Antea Group
  2. 2. Antea USA, Inc. What’s the issue? Fees, fees and more fees…. Cities have the right to levy fees for services in their municipal limits: direct connections to MS4 systems, water and sewer, local power, if applicable, etc. These are all reasonable services, as they provide a unit service for a unit cost. But is rain falling on your railway a municipal service? Can you really say all sheet-flow runoff is costing the city money via their storm sewer system? By some estimates nearly 2000 cities around the US are considering stormwater fees. Portsmouth, VA just issued notice letters, but then let the program drop. Other cities are not backing off.
  3. 3. Antea USA, Inc. Portsmouth, VA Fee Effort (dropped) Under the Portsmouth, VA City Code Section 31.2-1: •Impervious surface area: $10.50 for one Equivalent Residential Unit (ERU) equal to 1,877 square feet. •Semi‐pervious surface area: $5.25 per ERU. We considered road crossings and other paved areas as impervious and tracks with ballast as semi-pervious. We also considered abandoned track as pervious, since the former corridor had vegetated. Resulted in lowing the fee estimate from the City’s original $8,000 per month to about $2,500 per month.
  4. 4. Antea USA, Inc. Los Angeles County Ballot Measure The case made by the county: •Parcel tax of 2.5 cents/sq ft of impermeable surface (rooftops, paved parking lots, etc). could raise up to $400 million annually for water quality projects. •Ballot failed in 2013. Must get get 2/3 voter approval to pass in 2018. •Credit Program is offered but property owners would need to reapply every 2 years and would be reimbursed up to 65% if certain criteria are met.
  5. 5. Antea USA, Inc. Los Angeles County Ballot Measure Another perspective: •UP is a complicated property owner, and property information available to assess County calculations have not been forthcoming. Projections have ranged from approximately $3 Million - $1 Million dollar assessment. •County has included in the proposed ordinance to include gravel (ballast) as permeable surface. •Only 40% of funds raised will be used for water quality - which is the stated reason for this parcel tax. •Criteria for the credit program would not be known until after November 2018 ballot.
  6. 6. Antea USA, Inc. Washington D.C. Storm Water Fees •District of Columbia (D.C.) has generally assessed railroad Right of Ways (ROWs) as 100% impervious. •CSX strongly disagrees •Conducted series of Cornell Sprinkle Infiltrometer tests • Green Areas with D.C. area (4 total) • Ballast within D.C. area (4 total) • Sub-Ballast within D.C. area (4 total)
  7. 7. Antea USA, Inc. Washington D.C. Storm Water Fees •Both types of railroad property demonstrated an average infiltration rate GREATER than the average infiltration rate for green area locations •Railroad ROW “C” should be same or less than that of green areas •D.C. Land Uses lists green space as having a runoff coefficient, or “C” value of 0.35 while no “C” value is given for railroad ROWs •CSX would like to see updated industry “C” value for railroad ROWs
  8. 8. Antea USA, Inc. Roanoke, VA Stormwater Fees
  9. 9. Antea USA, Inc. Roanoke, VA Stormwater Fees City Council adopted a Stormwater Utility Ordinance November 11, 2013 to be effective July 1, 2014. Fee rates would be phased in over a 3 year period beginning with (per 500 square feet): •$0.30 per month in July 2014, •$0.60 per month in July 2015 •$0.90 per month in July 2016 – NS Fees in excess of $532,000 An impervious material or condition is present when the natural infiltration of water into soil is significantly impeded or prevented.” Impervious surfaces include, but are not limited to, roofs, buildings, decks, or pools, as well as any concrete, asphalt, compacted dirt or compacted gravel surface.
  10. 10. Antea USA, Inc. Roanoke, VA Stormwater Fees
  11. 11. Antea USA, Inc. Roanoke, VA Stormwater Fees
  12. 12. Antea USA, Inc. Norfolk Southern v. City of Roanoke Norfolk Southern filed a “4R Act” suit against the City. • The Railroad Revitalization and Regulatory Reform Act (“4R”) of 1976 prohibits taxing the railroads in a discriminatory manner. • The City of Roanoke’s stormwater ordinance assesses a stormwater charge against impervious surfaces including NS’s ballasted rights of way and yard areas. • The City does not assess the charges on grassy “lawn” areas. • Studies have shown that ballasted areas are just as “pervious” as lawn areas. • Therefore, NS filed its 4R Act suit alleging that the City was being discriminatory by assessing NS’s ballasted areas, but not lawn areas
  13. 13. Antea USA, Inc. • In order to bring a 4R Act claim, the stormwater charge must be a “tax” and not a “fee.” • City of Roanoke filed a Motion to Dismiss alleging that its stormwater ordinance assessed a “fee” and not a “tax.” • Controlling case law has developed a three-part test to distinguish taxes from fees: Norfolk Southern v. City of Roanoke
  14. 14. Antea USA, Inc. Norfolk Southern v. City of Roanoke Courts Ruling: • Federal judge determined that Roanoke’s stormwater assessments were fees – despite the fact that: •Created by legislative body (Roanoke City Council) •Imposed on all property owners in Roanoke (large group of people) •Benefits Public at large (the ordinance explicitly states the ordinance is “necessary to protect the general health, safety, and welfare of the residents of the city” • Because judge ruled it was a “fee,” then the 4R Act does not apply and the lawsuit was dismissed.
  15. 15. Antea USA, Inc. Norfolk Southern v. City of Roanoke-Appeal • Norfolk Southern has appealed to the 4th Circuit Court of Appeals • Briefing completed – Oral arguments set for November 1. • If NS is successful – then case will continue to the merits and we will litigate whether ballasted areas are as pervious as lawns. • If NS is unsuccessful – then case is dead and no judicial determination on perviousness of ballasted rail.
  16. 16. Antea USA, Inc. Lessons Learned- Get Ahead of the Ordinance Municipalities that have exempted ballast rail • Florence, SC (Tracks) • Menomonie, WI (RR Tracks & ROW) • Salisbury MD • Augusta, GA (Tracks) • Springfield, OH (Track ROW) • Terra Haute, IN (Track – Proposed) • San Antonio, TX (Rail Ballast Areas) • Warsaw, IN (Railroads) • Portland, ME • Wilson, NC (Tracks) • Columbia County, GA (Tracks & ROW) • Baltimore, MD (Tracks) • Detroit, MI (Tracks) • Philadelphia , PA (Tracks) • Chattanooga, TN (Tracks) • Wayzata, MN (ROW) • Belle Meade, TN (Tracks) • St. Augustine, FL (Tracks & ROW) • Austell, GA (Tracks) • Griffin, GA (Tracks) • Kenosha, WI (Tracks & ROW) • Alcoa, TN (RR Tracks) • Clemmons, NC (ROW) • Vincennes, IN (RR ROW)
  17. 17. Antea USA, Inc. Lessons Learned – Apples to Oranges
  18. 18. Antea USA, Inc. Lessons Learned – Challenging New Invoices • Follow Appeal Process and ask for a meeting to explain the drainage characteristics of ballasted tracks • Credit Application- Relief with existing BMP’s and Permits • Not to Pay/Pay in Protest
  19. 19. Antea USA, Inc. Lessons Learned - Implement Coefficients For most municipalities, either a surface is impervious or it’s not. On a number scale, 0 (not impervious) or 1 (impervious) rating.
  20. 20. Antea USA, Inc. Questions Peter Masson Antea Group 510-292-5473 Peter.Masson@AnteaGroup.com Brent Azzo Genesee & Wyoming 904-900-6243 Brent.Azzo@GWRR.com Lupe Valdez Union Pacific (562) 566-4612 lcvaldez@up.com Fred Schesny Norfolk Southern (404) 529 – 1256 frederick.schesny@nscorp.com Mark Austin CSX Transportation 904-279-3843 Mark_E_Austin@csx.com

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