Norfolk Southern balks at fixing flooding problem near Southland Drive

The city of Lexington and an environmental group want Norfolk Southern Railroad to stop allowing sediment and mud from its tracks into the city’s stormwater system, saying the mud and sediment clogs pipes and contributes to flooding.

The city sent the railroad a notice of violation on April 12, alleging that sediment from railroad tracks south of Derby Drive in the Southland Drive area is being pumped from under the railbed by the weight of trains during major storm events. That sediment goes into the city’s storm drains and eventually ends up in the nearby Wolf Run watershed.

The drainage system in the area leads to a concrete culvert in front of The Great Room and Don Wilson’s Music Co. on Southland Drive just before the Northfolk Southern Railroad overpass. If the culvert gets blocked with mud and silt — as it did after heavy rain June 23 — the water floods the parking lots of those businesses.

The city had asked the railroad to correct the problem by June 1, but that didn’t happen.

In a May 22 letter to the city, lawyers for the railroad said Norfolk wasn’t responsible for the discharge into the city’s storm drains. The railroad also contends that it is exempt from the city’s regulations governing stormwater discharge. The company said it has to comply only with the U.S. Clean Water Act, which regulates discharge of pollutants into waterways, under limited circumstances.

Jonathan Glass, a spokesman for Norfolk Southern, said the company is in compliance with the Clean Water Act. “The discharge of soil with naturally occurring limestone underlying the track is not regulated by the Clean Water Act or the city,” Glass said.

Charlie Martin, director of the city’s Division of Water Quality, said the city’s legal department is analyzing Norfolk Southern’s response and hasn’t decided how to proceed. The city is planning a muti-year, $10 million stormwater improvement project in the Southland Drive area to fix longstanding flooding problems. It also bought several homes on Derby Drive several years ago because of constant flooding near the drainage pipe at issue with Norfolk Southern.

“We would be interested in partnering with them so we can find a solution,” Martin said.

Ken Cooke, who is with the environmental group Friends of Wolf Run, said if the city decides not to fight the railroad, his group plans to pursue the matter with state and federal water regulators. The federal Clean Water Act allows citizens to sue over alleged violations.

“We have to exhaust all remedies through local and state layers of delegated authority under the Clean Water Act to eventually trigger a federal intervention,” Cooke said.

“The objectionable discharges happen every time it rains an inch or more, so we can provide frequent, direct, observable evidence on a regular basis until the problem is fixed,” Cooke said. Friends of Wolf Run routinely takes videos of the railroad tracks during rainstorms.

Cooke said railroad companies often don’t have to comply with state and federal regulations. But this is different, he said.

“We do recognize that railroads are regulated differently than other entities and would be exempt from local permitting, but they are not given blanket immunity from prohibited discharges,” Cooke said. “An ambulance may not have to stop for a red light, but they can’t plow through cars in the intersection with impunity.”

Cooke said the group became aware of the problem more than two years ago after getting a tip from a landowner who spotted the mud and sediment coming off the railroad bed.

“Norfolk is not the sole cause of the flooding in that area — there are many issues — but they are contributing to it,” Cooke said.

Environmentalists say sediment and mud can harm aquatic life by suffocating fish eggs at the bottom of Wolf Run.

“Heavy mud and silt coming from the railroad bed from a fish’s perspective would be like pumping heavy smoke into your living room,” Cooke said. “You can no longer see to find food and escape, and you will choke from difficulty breathing. Silt clogs their gills.”

In its letter to the city, lawyers for the railroad said Norfolk investigated after receiving the notice of violation “and has found no illicit discharge or land disturbance.”

Railroads are overseen by the federal Surface Transportation Board, according to the letter from the law firm Smith, Gambrell and Russell, which represents Norfolk Southern. That means the railroad doesn’t have to get permits or follow the regulations of Lexington’s merged government or state regulations, the company contends.

In addition, the railroad has to comply with the federal Clean Water Act only as it relates to industrial activities, such as equipment cleaning or vehicle maintenance, the letter said.

Attorneys for Norfolk Southern also said they think runoff water from nearby parking lots and other businesses is flowing into the company’s drainage system. They asked the city to investigate and cite those who are illicitly using the company’s drainage system.

There are several potential solutions to drainage problems in the area.

Two possible remedies include adding ponds and natural grass land — called bioswales — that can remove sediment and pollutants from surface water runoff. But those options would require the railroad to buy more land, which isn’t cheap.

A device called a hydrodynamic separator, which cleans silt and debris from water, also could fix the problem, Cooke said.

“It’s between $20,000 and $30,000,” Cooke said. “But that’s a lot cheaper than paying for a Lear jet full of lawyers.”

This story was originally published June 30, 2017 at 11:29 AM with the headline "Norfolk Southern balks at fixing flooding problem near Southland Drive."