08/29/2026
𝐒𝐓𝐎𝐑𝐌𝐖𝐀𝐓𝐄𝐑 𝐑𝐄𝐆𝐔𝐋𝐀𝐓𝐈𝐎𝐍 𝐀𝐔𝐓𝐇𝐎𝐑𝐈𝐓𝐘 𝐀𝐍𝐃 𝐇𝐈𝐒𝐓𝐎𝐑𝐘
𝐀 𝐋𝐨𝐧𝐠𝐞𝐫 𝐏𝐨𝐬𝐭, 𝐁𝐮𝐭 𝐎𝐧𝐞 𝐈𝐧𝐭𝐞𝐧𝐝𝐞𝐝 𝐓𝐨 𝐀𝐧𝐬𝐰𝐞𝐫 𝐐𝐮𝐞𝐬𝐭𝐢𝐨𝐧𝐬
Yesterday, we shared a shorter summary regarding stormwater. Following that post, many residents had additional questions and comments — and it’s great. Rather than continuing with shorter responses, we want to take the opportunity to provide a more complete explanation of why the Stormwater Utility exists, where the requirements came from, what the City is legally required to do and how stormwater fees are used. All of this can be found within various documents and our website, but this is as good opportunity as even to try to educate - which is actually a requirement of our permit as explained below. This is a long post that tries to explain a complicated and sometimes abstract federally mandated unfunded program. You can find even more here: https://www.cityofmartinsburg.org/government/city-departments/stormwater-management
The recent flooding has understandably focused attention on stormwater and its role. That is understandable given the damage experienced by residents, businesses and public infrastructure. However, it is important to recognize that the volume and intensity of rainfall associated with this event would have caused significant flooding regardless of whether Martinsburg had a Stormwater Utility. Similar flooding events have occurred throughout West Virginia in recent years in communities both with and without stormwater utilities.
We are not asking everyone to agree with stormwater regulations, stormwater fees or the broader regulatory framework — actually we don’t expect it. People are certainly entitled to their own opinions and the City itself has expressed many of the same frustrations with this program. In fact, over the years we have expressed pretty strong objections to being forced to comply with an unfunded program - especially when many similar jurisdictions have not been subjected to the same framework. Our objections have been unsuccessful.
Our goal is simply to explain where we are today, how we got here and why the City is required to do what it does.
We recognize that reasonable people can disagree with the underlying federal policy — or even how we are trying to comply. Some may believe these requirements should be funded differently, modified or eliminated altogether. Those are legitimate public policy discussions. Our purpose here is not to tell anyone what they should think. It’s not our role. Rather, it is to explain the regulatory framework that exists today and the obligations that local government must operate within.
Whether we like it or not, stormwater regulation is not going away absent congressional action. The City cannot unilaterally opt out of these requirements, nor can we simply discontinue the program. We have been mandated subjected to penalty to comply by the federal government. Because the topic continues to generate questions, we believe it is important to discuss it openly and explain the history behind it.
𝐑𝐄𝐋𝐄𝐕𝐀𝐍𝐓 𝐃𝐎𝐂𝐔𝐌𝐄𝐍𝐓𝐒
For anyone who wishes to review the source documents themselves:
EPA Consent Order (March 25, 2021 Council Packet, approximately page 146)
View Document:https://d3n9y02raazwpg.cloudfront.net/martinsburgwv/d40b1cca-7d2e-11eb-96cb-0050569183fa-223cb742-0dda-4624-a06b-84378520b7c8-1616674704.pdf
The Consent Order required the City to:
"implement an adequately staffed and funded stormwater program to meet the MS4 program requirements, including compliance, administrative, engineering, staffing, proactive maintenance, capital projects and equipment."
Martinsburg Stormwater Management Plan (SWMP)
View Document: https://www.cityofmartinsburg.org/home/showpublisheddocument/216/637523278019070000
WVDEP MS4 General Permit
View Document: https://www.cityofmartinsburg.org/home/showpublisheddocument/1265/638949245605930000
𝐓𝐇𝐄 𝐂𝐈𝐓𝐘 𝐃𝐈𝐃 𝐍𝐎𝐓 𝐂𝐑𝐄𝐀𝐓𝐄 𝐓𝐇𝐄𝐒𝐄 𝐑𝐄𝐐𝐔𝐈𝐑𝐄𝐌𝐄𝐍𝐓𝐒
One of the most important things to understand is that Martinsburg's stormwater program was not created as a local policy initiative.
The City's stormwater obligations originate from the federal Clean Water Act, regulations issued by the United States Environmental Protection Agency (EPA) and permits issued by the West Virginia Department of Environmental Protection (WVDEP). Martinsburg was designated as a regulated Phase II Municipal Separate Storm Sewer System (MS4) in 2004 and remains regulated today.
The City has explored whether it could leave the MS4 program. To date, WVDEP has not allowed the City to exit the program. As long as Martinsburg remains subject to the permit, the City must continue complying with applicable federal and state requirements.
𝐓𝐇𝐄 𝐇𝐈𝐒𝐓𝐎𝐑𝐘 𝐎𝐅 𝐒𝐓𝐎𝐑𝐌𝐖𝐀𝐓𝐄𝐑 𝐑𝐄𝐆𝐔𝐋𝐀𝐓𝐈𝐎𝐍
The Clean Water Act was adopted by Congress in 1972 as the nation's primary water pollution law. The original 1972 Clean Water Act did not specifically create the modern stormwater permitting program that exists today. Following litigation in the 1970s, including a federal court decision that limited EPA's ability to exempt stormwater-related discharges from permitting requirements, Natural Resources Defense Council (NRDC) v. Costle, 568 F.2d 1369 (D.C. Cir. 1977), Congress formally amended the Clean Water Act in 1987 to specifically address stormwater and establish the framework that ultimately led to today's MS4 permit program.
EPA implemented Phase I stormwater regulations in 1990 and Phase II regulations in 1999. Martinsburg became a regulated Phase II MS4 in 2004.
𝐖𝐇𝐀𝐓 𝐈𝐒 𝐀𝐍 𝐌𝐒𝟒?
An MS4 is a publicly owned system used to collect and convey stormwater. This includes streets, gutters, curbs, ditches, catch basins, pipes, storm drains and related infrastructure.
Under EPA regulations, every Phase II MS4 is required to implement six Minimum Control Measures:
• Public Education and Outreach
• Public Participation and Involvement
• Illicit Discharge Detection and Elimination
• Construction Site Runoff Control
• Post-Construction Runoff Control
• Pollution Prevention and Good Housekeeping
These six measures form the backbone of the City's Stormwater Management Plan and are the foundation for many of the activities performed by the Stormwater Utility.
As a regulated MS4 community, Martinsburg must conduct public education, inspections, water-quality monitoring, stormwater mapping, illicit discharge enforcement, construction-site oversight and extensive reporting and recordkeeping. These are permit requirements, not optional activities and they cost a substantial amount of money to complete to EPA and DEP satisfaction.
𝐄𝐏𝐀 𝐀𝐔𝐃𝐈𝐓𝐒 𝐀𝐍𝐃 𝐓𝐇𝐄 𝟐𝟎𝟐𝟏 𝐂𝐎𝐍𝐒𝐄𝐍𝐓 𝐎𝐑𝐃𝐄𝐑
The City underwent multiple audits and compliance reviews by EPA and WVDEP.
EPA's second audit process began in late 2019 and continued through 2020. EPA concluded that Martinsburg was not adequately implementing all aspects of its permit requirements and approved Stormwater Management Plan. That review ultimately resulted in an EPA Consent Order issued in early 2021.
One of the key provisions of that Consent Order required the City to establish an adequately staffed and funded stormwater program.
The City retained George, Miles & Buhr (GMB) to determine what an adequately staffed and funded program would require. The consultant concluded that approximately $2.4 million annually would be needed by 2024 to comply with the City's permit, Stormwater Management Plan and Consent Order.
The EPA Consent Order immediately created a multi-million dollar unfunded mandate. The City did not have an additional $2.4 million available in the General Fund budget - still doesn’t. As a result, the City established a stormwater utility and fee as authorized under West Virginia law.
The consultant's recommendations represented what was determined to be necessary to fully staff and fund the program. However, the City has not implemented all of the staffing and resource recommendations identified in the study. Instead, the City has attempted to balance permit compliance with affordability concerns by phasing in the fee, carefully evaluating staffing needs and implementing the program in a manner intended to keep costs as low as possible while maintaining compliance with federal and state requirements.
Following implementation of the utility, the City corrected the deficiencies identified by EPA. Additional staff were hired, inspections expanded, mapping improved and compliance procedures strengthened. EPA subsequently released the City from its non-compliance status after determining that the identified deficiencies had been corrected.
𝐃𝐈𝐃 𝐓𝐇𝐄 𝐒𝐓𝐎𝐑𝐌𝐖𝐀𝐓𝐄𝐑 𝐔𝐓𝐈𝐋𝐈𝐓𝐘 𝐖𝐎𝐑𝐊?
From an EPA compliance standpoint, yes.
The utility was created to provide a dedicated funding source for permit compliance and corrective actions required by EPA. The utility accomplished the compliance objectives EPA required it to accomplish. The EPA and DEP continues to review, audit and monitor the City for compliance with its permit. The review and compliance is never-ending.
𝐑𝐄𝐂𝐎𝐆𝐍𝐈𝐙𝐈𝐍𝐆 𝐓𝐇𝐄 𝐖𝐎𝐑𝐊 𝐎𝐅 𝐓𝐇𝐄 𝐒𝐓𝐎𝐑𝐌𝐖𝐀𝐓𝐄𝐑 𝐔𝐓𝐈𝐋𝐈𝐓𝐘
It is also important to recognize the work performed by the City's Stormwater Utility staff.
Following the 2021 EPA Consent Order, City staff worked diligently to address the deficiencies identified through EPA's audit process. Additional personnel were hired, inspections were expanded, mapping was improved, recordkeeping was strengthened and permit compliance activities were enhanced.
Those efforts were successful. EPA ultimately released the City from its non-compliance status after determining that the identified deficiencies had been corrected.
The Stormwater Utility continues to perform the inspections, monitoring, mapping, reporting, maintenance, public education and compliance activities required by the City's permit and approved Stormwater Management Plan.
Reasonable people can certainly debate whether federal stormwater regulations should place greater emphasis on flooding, drainage capacity and infrastructure improvements rather than water-quality objectives. Those are valid public policy discussions. However, the City's responsibility is to comply with the permit requirements that currently exist, and City staff are performing the work required to meet those obligations.
𝐒𝐓𝐎𝐑𝐌𝐖𝐀𝐓𝐄𝐑 𝐑𝐄𝐆𝐔𝐋𝐀𝐓𝐈𝐎𝐍 𝐈𝐒 𝐏𝐑𝐈𝐌𝐀𝐑𝐈𝐋𝐘 𝐀𝐁𝐎𝐔𝐓 𝐖𝐀𝐓𝐄𝐑 𝐐𝐔𝐀𝐋𝐈𝐓𝐘
One of the biggest misconceptions regarding stormwater involves flooding.
The federal MS4 program is primarily a water-quality program, not a flood-control program.
The purpose of the permit is to reduce pollutants entering streams, rivers and other waterways.
This is why residents may see activities such as catch basin cleaning, stormwater mapping, commercial inspections, construction-site inspections, stormwater pond inspections, stream cleanups, storm drain marking, employee training, hazardous waste collection events, illicit discharge investigations and public education programs.
It is fair to ask whether future federal stormwater policy should place greater emphasis on flood mitigation, drainage improvements and infrastructure resiliency. However, the current federal MS4 program is primarily structured as a water-quality program, and the City is required to comply with the program as it currently exists.
𝐖𝐇𝐘 𝐃𝐈𝐃𝐍'𝐓 𝐓𝐇𝐄 𝐒𝐓𝐎𝐑𝐌𝐖𝐀𝐓𝐄𝐑 𝐅𝐄𝐄 𝐏𝐑𝐄𝐕𝐄𝐍𝐓 𝐅𝐋𝐎𝐎𝐃𝐈𝐍𝐆?
Because that is not what the fee was created to fund.
The fee was calculated based upon the cost of complying with federal and state water-quality regulations. It was not calculated based upon the cost of rebuilding or dramatically upsizing the City's entire stormwater system to accommodate extraordinary rainfall events.
Projects of that magnitude would likely require investments measured in many tens of millions of dollars.
Most modern stormwater systems are generally designed to manage more routine rainfall events and reduce flooding from smaller and more common storms. They are not typically designed to completely eliminate flooding during extreme rainfall events that produce several inches of rain in a very short period of time.
It is also important to recognize that substantial runoff enters Martinsburg from outside the City's corporate limits before ultimately flowing through the City's waterways and drainage system.
𝐀 𝐆𝐑𝐎𝐖𝐈𝐍𝐆 𝐍𝐀𝐓𝐈𝐎𝐍𝐀𝐋 𝐔𝐍𝐅𝐔𝐍𝐃𝐄𝐃 𝐌𝐀𝐍𝐃𝐀𝐓𝐄
It doesn’t make it easier to accept, but Martinsburg is not unique.
EPA's Environmental Financial Advisory Board has reported an estimated $7 billion to $10 billion annual stormwater funding gap nationwide.
EPA estimates for large municipal stormwater systems increased from approximately $23.8 billion in 2012 to approximately $115.3 billion a decade later.
ASCE reports that wastewater and stormwater systems face roughly $99 billion in annual capital needs while only about 30% of those needs are currently funded. The resulting annual funding gap is estimated at roughly $69 billion and could exceed $690 billion cumulatively by 2044.
Martinsburg is not alone in confronting these challenges. Nearby jurisdictions such as Hagerstown and Wi******er also operate stormwater utilities and charge stormwater fees. Across the country, an increasing number of communities have implemented dedicated stormwater funding mechanisms as permit requirements and compliance costs continue to increase.
Federal stormwater regulations have been debated, challenged and discussed for many years. However, the current MS4 regulatory framework remains in effect today, and regulated communities remain legally obligated to comply.
Thousands of communities across America face the same challenge: federally mandated requirements with insufficient federal funding.
𝐀𝐃𝐃𝐑𝐄𝐒𝐒𝐈𝐍𝐆 𝐀 𝐂𝐎𝐌𝐌𝐎𝐍 𝐌𝐈𝐒𝐂𝐎𝐍𝐂𝐄𝐏𝐓𝐈𝐎𝐍 𝐀𝐁𝐎𝐔𝐓 𝐆𝐑𝐀𝐍𝐓 𝐅𝐔𝐍𝐃𝐈𝐍𝐆
Another rumor occasionally surfaces that the City received stormwater grants that were somehow stolen, misappropriated or otherwise lost. This is completely untrue. Let us repeat - this is not true. The City never received such a grant. We wish we had received a grant to fund this program - but we did not.
Furthermore, there are no audit findings, investigations, regulatory actions or other evidence indicating that stormwater grant funds were stolen, misappropriated or diverted.
𝐓𝐇𝐄 𝐑𝐄𝐀𝐋𝐈𝐓𝐘 𝐎𝐅 𝐂𝐎𝐌𝐏𝐋𝐈𝐀𝐍𝐂𝐄
Martinsburg's stormwater program is federally mandated, state administered and locally funded.
The City did not create these requirements.
The City cannot opt out of these requirements.
The City receives no dedicated federal funding sufficient to implement these requirements.
Yet the City remains legally obligated to comply with them.
For the City, the issue was never whether it would comply with federal and state law. The issue was how to comply and how to pay for compliance.
𝐋𝐎𝐎𝐊𝐈𝐍𝐆 𝐅𝐎𝐑𝐖𝐀𝐑𝐃
The City remains mindful of the financial impact stormwater fees have on residents and businesses. We continuously make this point to our state and federal representatives.
The City does not view permit compliance and infrastructure improvement as mutually exclusive goals.
We will continue pursuing grants, partnerships, capital funding opportunities and other resources that can improve drainage, reduce localized flooding concerns and strengthen critical infrastructure.
However, it is important to understand that the current stormwater fee was established to fund compliance with federal and state regulatory requirements and the obligations imposed through the EPA Consent Order. It was not designed or calculated to generate the revenue necessary to comprehensively rebuild, replace or expand the City's stormwater infrastructure system. Had it been calculated to address the permit regulations plus major capital improvements, the fee would be much larger.
Those are separate discussions involving significantly larger investments and funding sources.
𝐓𝐇𝐄 𝐂𝐈𝐓𝐘'𝐒 𝐑𝐎𝐋𝐄
Whether one agrees with the federal policy or not, the City's responsibility is to comply with the law, operate the program as efficiently as possible, maintain permit compliance and continue seeking opportunities to improve infrastructure for our residents. Again, the City has many objections to the federal government placing substantial unfunded mandates on the City and its residents.
The City did not create the federal requirements that govern stormwater today, but we are responsible for meeting them.
𝐅𝐈𝐍𝐀𝐋 𝐓𝐇𝐎𝐔𝐆𝐇𝐓𝐒
Residents are entitled to their own views regarding stormwater regulations, stormwater fees and federal environmental mandates — that is the great thing about our republic — everyone can have an opinion. We are not asking everyone to agree with the current regulatory framework.
We simply want residents to understand where these requirements came from, why the City is obligated to comply with them and how stormwater fees are being utilized.
Quite frankly, many local governments throughout the country share similar concerns regarding federally mandated programs that must be funded at the local level. It’s a continuing trend.
However, unless Congress, EPA or state regulators change the underlying requirements, the City remains legally obligated to comply with the Clean Water Act.
While people may disagree on how federal stormwater policy should be structured, local governments do not have the authority to rewrite federal law. Our responsibility is to comply with the requirements that currently exist while continuing to advocate for practical, affordable solutions and pursue opportunities to improve local infrastructure.
The City's Stormwater Utility staff have worked hard to build and maintain a compliant program. While people may disagree with federal policy, the employees responsible for implementing the program continue to perform the work required under the City's permit and Stormwater Management Plan. Stormwater employees don’t create law; they abide by them.
We hope this information helps explain how we got here, what the City is required to do and why the Martinsburg Stormwater Utility exists today.
Thanks for your time and attention.
