On March 23, 2022 the DC Department of Energy & Environment (DOEE) published the final Building Energy Performance Standards Compliance Guidebook, which provides specifics instructions and details for compliance.
What’s in the guidebook?
The Guidebook should be used by building owners who have determined that their building did not meet the Standard for its property type and must complete the requirements of a Compliance Pathway. It will help readers in understanding the requirements of the BEPS, compliance methods, and enforcement of the BEPS Program.
The Guidebook is organized as follows:
- Chapter 2 – Compliance process and change of ownership requirements
- Chapter 3 – Principal Compliance Pathways
- Chapter 4 – Alternative Compliance Pathway options
- Chapter 5 – Delay of compliance process
- Chapter 6 – Enforcement process
Note: Cycle 1 was extended by one year to become a six-year time period due to the COVID-19 public health emergency (PHE). This extension was automatically granted to all buildings that do not meet the BEPS. The information in this article, and deadlines referenced, are specifically for buildings who are remaining in this extended, six-year Compliance Cycle. Any building owner wishing to opt out of the COVID-19 PHE delay should contact DOEE to be entered into a five-year time period that would end on December 31, 2025 and shall refer to the Guidebook for deadlines associated with that selection.
Chapter 2 – Compliance Cycle Process
If a building fails to meet the Standard for its property type at the beginning of the BEPS Period, the building enters a Compliance Cycle, where the building owner must select and complete the requirements of a Compliance Pathway by the end of the Cycle.
The general process of compliance is the same no matter which Pathway a building owner chooses: 1) select a Pathway, 2) improve the building’s performance, and 3) demonstrate improvements through benchmarking and compliance with the selected Pathway. DOEE evaluates the building against the Pathway’s requirements to determine if compliance was achieved and if not, the building will be subject to a penalty.
The Compliance Process
For most buildings that do not meet the BEPS, the default time for Cycle 1 begins January 1, 2021 and ends December 31, 2026. (See Section 5.2 [L2] on how to apply for eligible delay circumstances).
Generally speaking, compliance requirements include two things, energy performance improvements and reporting/verification requirements. Successful completion of those requirements is how a building that did not meet the Standard at the beginning of a BEPS Period achieves compliance.
There are two primary types of Compliance Pathways:
- Performance-based. Buildings must meet a numerical energy performance improvement target by the end of the Compliance Cycle and use their annual benchmarking report to demonstrate that requirements are met.
- Action-based. Buildings must take specific actions, with the plans/reports being submitted during the Compliance Cycle, that will improve the building’s energy performance, rather than meet a numerical target. (Note: benchmarking requirements still apply, but BEPS fines/penalties would be based on failure to meet the actions, not the results of the benchmarking data.)
Postponements. Building owners that encounter unforeseen difficulties in meeting the deadlines have two types of postponements available to them:
- Extension of a deadline. These are meant for short-term extensions to interim Compliance requirements.
- Delay of compliance. These may be available when a building cannot complete its Pathway requirements by end of the Cycle. (See more details in Chapter 5).
It is not acceptable for a building owner to implement energy efficiency measures that reduce indoor environmental quality or that pose a threat to the health and safety of a building occupant or user. Any owners found in violation of these codes will be liable for any fines, penalty, or other enforcement actions taken by DCRA.
Buildings following a performance-based Pathway must be evaluated based on the building’s reported energy benchmarking data from the baseline year(s) compared to evaluation year(s). The baseline and evaluation year requirements and options are as stated in each Pathway’s description.
This is the first requirement for buildings entering a Compliance Cycle. A building owner must select a Compliance Pathway and use the Pathway Selection Form, providing all required documentation per the Pathway selected, to submit the selection to DOEE for approval.
Pathway selection for Cycle 1 is due on April 1, 2023.
Following submission of the Form and any supporting documentation, DOEE will review and send notice of approval, a request for more information, or an alternative selection. If a building owner does not select a Pathway by the reporting deadline, DOEE will assign a Pathway.
At any time during the Compliance Cycle, a building owner may apply to DOEE to change the Pathway (including buildings under a DOEE-assigned Pathway) by submitting a Pathway Change Application. DOEE will evaluate the application and notify the building owner of the change approval, request more information, or inform that request is denied.
BEPS apply to buildings that existed at the time of the establishment of the BEPS on January 1, 2021 and meet the square foot thresholds.
Buildings that were issued a New Building Core and Shell Certificate of Occupancy from DCRA before the beginning of the BEPS Period (2019-2020) either were not required to or did not submit a 2019 District Benchmark Report. Under the 2021 BEPS Establishment Regulations, these buildings are assumed to not meet the BEPS and will enter a Compliance Cycle. These buildings are eligible to select the New Construction/Change of Property Type ACP option for Cycle 1, where the building must meet or exceed the Standard for the Property Type by the end of the Cycle, described in Section 4.3.
All buildings that are issued a New Building Core and Shell Certificate of Occupancy from DCRA after the beginning of the BEPS Period (between January 2, 2021 and December 31, 2026) are not subject to the 2021 BEPS. These buildings will be evaluated for the first time at the beginning of the next BEPS Period.
For College/University or Hospital Campuses. If a new building is constructed on a Campus that has entered a Compliance Cycle and the building is not separately metered, the building will be included in the evaluation of compliance at the end of Cycle 1 but may be eligible to request a baseline adjustment described in Section 4.4.
Buildings that undergo major renovations will not be exempted, but may receive baseline adjustments per Section 4.4 or a delay of compliance per Chapter 5.
Buildings that are demolished immediately before the beginning of or during a Compliance Cycle are not subject to BEPS. The building owner must request that the building be exempt from BEPS by submitting the Demolition Exemption Request. DOEE will review the demolition notification and either approve the exemption from BEPS, request more information, or reject the request.
For the vast majority of cases, a building’s historic status does not interfere with its ability to meet the energy performance requirements of BEPS. However, DOEE may approve a baseline adjustment (Section 4.4) or a delay (Chapter 5) for buildings with historic status.
Change of ownership does not exempt the building from compliance with the energy performance or reporting/verification requirements of a Compliance Cycle.
If a building changes hands, the building owner at the time of an interim compliance deadline is responsible for taking that step (ex. Pathway Selection). At the end of the Compliance Cycle, the building owner is responsible for the final energy performance and reporting/verification requirements.
The seller must provide the buyer with information related to the building’s BEPS compliance status prior to the transfer or sale including:
- any information, plans, or reports submitted to DOEE as required by the building’s approved Pathway,
- the most recent complete and accurate District Benchmark Results and Compliance Report for the building, and
- information describing any progress toward meeting the energy performance requirements.
Note: Some information will be publicly available (e.g. whether a building meets the Standard and which Pathway was approved). Buyers may request more detailed information from DOEE, such as interim submissions relating to the Prescriptive or alternative Pathways.
Sellers that fail to complete this requirement may be subject to civil infractions. DOEE must be notified when building ownership is changing and recommends that both the buyer and the seller sign a Change of Ownership Disclosure Acknowledgement Letter.
A new owner may submit a request to switch Pathways as described in Section 2.6 and/or request a delay of compliance, if needed (Chapter 5). Otherwise, the new owner must meet the requirements of the previously approved Compliance Pathway by the end of the Compliance Cycle, without exception.
Chapter 3 – Principal Compliance Pathways
There are three Principal Compliance Pathways for the BEPS Program:
- Performance. Evaluation is performance-based. Buildings must reduce site EUI by 20%
- Standard Target Pathway. Evaluation is performance-based. Buildings must reach the Standard (i.e. the median ENERGY STAR score or Source EUI) for the building’s property type.
- Prescriptive. Evaluation is action-based. Buildings must meet interim reporting deadlines, implement measures, and complete reporting.
See Chapter 4 for information on the Alternative Compliance Pathway (ACP) for unique situations or ambitious goals.
Owners have the flexibility to determine how to achieve a 20% reduction in site EUI, which is demonstrated by a decrease in energy use from the beginning of a Compliance Cycle (i.e. the baseline years) to the end of the Compliance Cycle (i.e. the evaluation years).
- Baseline: site EUI averaged over CY2018-2019
- Evaluation: site EUI in CY2026
Site EUI information will be taken from the building’s benchmarking report.
If the property type can receive an ENERGY STAR Score the performance metric is Site Energy Use Intensity Adjusted to Current Year (Adjusted Site EUI) as defined by Portfolio Manager.
If the property type cannot receive an ENERGY STAR Score, and is using the equivalent metric for Standard establishment, then the performance metric is Weather Normalized Site EUI (Normalized Site EUI).
For those few buildings cannot receive either metric due to unique situations, the performance metric is Site Energy Use Intensity which is the building’s annual Site Energy Consumption divided by Gross Floor Area (GFA).
- Pathway Selection Form. Due April 1, 2023
- Completed Actions Report. Due April 1, 2027
- District Benchmark Results and Compliance Report (third-party verified complete and accurate) for CY2026. Due April 1, 2027
Note: The Completed Actions Report includes a short survey of the energy efficiency measures the building owner implemented (e.g., list of the measures; cost(s); implementation dates; and estimated energy savings from each measure, if available) to meet the energy performance requirements. This report must be filed regardless of whether a building meets required 20% reduction in site energy use and will be used by DOEE to improve future iterations of the BEPS Program.
Standard Target Pathway
This pathway is intended for buildings with a site EUI less than 20% away from the Standard. The goal for this Pathway is for a building to meet or exceed the Standard (e.g. ENERGY STAR score or source EUI) for its property type in the evaluation year(s). Building owners have the flexibility to choose how to meet performance requirements.
A building must be of a “high-performing” property type to be eligible for the Standard Target Pathway. This includes those property types where the Standards are more stringent (more efficient) than the national median, which is an ENERGY STAR Score of 50, or for property types that cannot receive a Score, the national median Source EUI.
A building on the Standard Target Pathway is evaluated using the same metric as the Standard for its property type. To meet the requirements of this pathways:
- A building that has its Standard measured in an ENERGY STAR Score must increase its ENERGY STAR Score to be equal to or higher than the Standard for that property type.
- A building that has its Standard measured in Normalized Source EUI must lower its Normalized Source EUI, so it is equal to or lower than the Standard for the property type.
- A building that has its Standard measured in unadjusted Source EUI must lower its Source EUI, so it is equal to or lower than the Standard for the property type.
- Pathway Selection Form. Due April 1, 2023
- Completed Actions Report. Due April 1, 2027
- District Results and Compliance Report (third-party verified complete and accurate) for CY2026. Due April 1, 2027
Note: The Completed Actions Report includes a short survey of the energy efficiency measures the building owner implemented (e.g., list of the measures; cost(s); implementation dates; and estimated energy savings from each measure, if available) to meet the energy performance requirements. This report must be filed regardless of whether a building meets the property type’s Standard and will be used by DOEE to improve future iterations of the BEPS Program.
ENERGY STAR scores are established and modeled by the EPA based on national models. It is not uncommon for EPA to update these models, which would affect buildings and their ENERGY STAR scores. DOEE cannot predict the specific effect until EPA releases updated ENERGY STAR Score models, but has developed steps to mitigate uncertainty and will provide additional information when EPA announces a future model update.
The Prescriptive Pathway is an action-based compliance method that includes reporting milestones and implementing one or more recommended energy efficiency measures (EEM) designed to achieve energy savings comparable to the Performance Pathway (i.e. a 20% savings in site EUI).
This Pathway is designed to help building owners mitigate risk for a Compliance Cycle—so long as they successfully implement the specific approved measures and meet all reporting/verification requirements, the building will comply, regardless of its energy performance.
The Prescriptive Pathway is separated into four Phases, each with specific actions and reporting/verification requirements based on industry best practices. Building owners must submit complete and accurate reports by the last day of each Phase to meet the reporting/verification requirements of the Prescriptive Pathway.
Phase 1 – Pathway Selection & Energy Audit. Deadline April 1, 2023
- Pathway Selection
- Energy Audit
Phase 2 – Action Plan. Deadline April 1, 2024
- O&M program
- Final EEM Package (See section 3.3.3. Retrocommissioning)
Phase 3 – Implementation Report. Deadline April 1, 2026
- Implementation Verification with Supporting Documentation
- O&M Program Implementation Attestation
Phase 4 – Evaluation, Monitoring, and Verification. Deadline April 1, 2027
- Post-implementation Analysis
- Updated O&M program and Attestation
- Unfinished Phase 3 verification
Supporting documentation required by DOEE shall be identified in each Phase. Throughout the Compliance Cycle, DOEE may request information or documentation, such as from or interviews with designers, building staff, commissioning agents, contractors; invoices/work orders; or site visits which may be necessary to verify proper implementation of the selected EEMs or completeness of compliance with the Prescriptive Pathway requirements.
If actions within the Prescriptive Pathway require a project team, building owners will be asked to submit information regarding each professional (names, contact information, credential or certification number, etc.) as part of the relevant reporting/verification requirement of each Phase.
Minimum qualifications for project team members, if the building’s scope of work requires that particular role, are as follows:
Professional Title Credentials Energy auditor One of the following:
- Certified Energy Auditor (CEA)
- Certified Energy Manager (CEM)
- Building Energy Assessment Professional (BEAP)
- High-Performance Building Design Professional (HPBD)
- Multifamily Building Analyst (MFBA)
Architect Licensed in DC Mechanical, Electrical, Plumbing (MEP) engineer Licensed in DC General contractor Licensed in DC Commissioning agent Minimum Qualifications to be an Approved Commissioning Agent through DCRA Retro-commissioning professional One of the following:
- MEP Professional Engineer – Any State Licensing Department
- Building Operator Certification (BOC) Level II
- Minimum Qualifications to be an Approved Commissioning Agent through DCRA
RCx is the process by which a building owner identifies and improves sub-optimal operating conditions to optimize the performance. To receive credit for RCx activities in the Prescriptive Pathway, the building owner will need to work with a RCx professional to conduct an assessment, report the results of the assessment to DOEE, complete corrective actions identified by the assessment, and then report the end state of the building’s system to DOEE.
Reporting templates are available to use in the assessment and should be used as a part of the EEM Final Package Submission at the end of Phase 2.
Two types of RCx assessments can receive credit on the Prescriptive Pathway as an EEM:
- On-site assessments. Require physical inspection of the building’s existing systems and building automation system through a site walkthrough.
- Trend assessments. Requires an analysis of building system activity over a 4- to 6-month period.
Actions Required. The building owner must complete a subset of corrective actions identified in the report that:
- Have a payback period of less than 3 years, or
- Have estimated savings adding up to 5% total building site energy consumption.
Additionally, the building owner must implement all indoor environmental quality-related corrective actions identified in the report.
All implemented corrective actions must be completed and verified by the RCx professional by the end of Phase 4.
Unlike the Performance or Standard Target Pathway, building owners seeking to follow the Prescriptive Pathway must submit an Energy Audit at the same time as the Pathway Selection. DOEE will not approve the selection of the Prescriptive Pathway unless the building owner has a submitted the Energy Audit.
The Energy Audit shall be conducted in accordance with ANSI/ASHRAE/ACCA Standard 211-2018 (ASHRAE 211).
If the building owner is planning on pursuing RCx as an EEM, DOEE highly recommends that building owners consider completing the RCx assessment at the same time as the Energy Audit.
188.8.131.52 – Energy Audit Requirements & EEM Recommendations
The energy audit must be completed by an energy auditor who holds one of the following credentials or certifications:
- CEA from Association of Energy Engineers (AEE)
- CEM from AEE
- BEAP from ASHRAE
- HBDP from ASHRAE
- MFBA from Building Performance Institute (only for multifamily properties)
The energy audit must be submitted through the DC BEPS Energy Audit Report Template.
*See the Guidebook for a complete description of requirements for the energy audit including timeframe of completion, identifying the baseline, the minimum savings that must be identified (Note: this is larger than the final amount targeted), an investment analysis, and requirements around replacing fossil-fuel burning equipment.
To ensure that buildings consider long-term plans for compliance with future BEPS Periods, DOEE is requiring that the energy audit identify more EEMs than necessary to meet the energy performance requirements. The results of the energy audit will be used in the Integrated Design Workshop in Phase 2 where the EEMs will be narrowed to target 25% in Site EUI savings to make up the final EEM package.
184.108.40.206 – Phase 1 Reporting Requirements
Due April 1, 2023
- Pathway Selection Form
- Energy Audit
During this Phase, the project team will
- Develop an O&M program to address existing operations and maintenance in the building.
- Note: this Pathway requires several stages of O&M programming, starting in Phase 2:
- Phase 2 – Planning
- Phase 3 – Implementation
- Phase 4 – Reporting
- Note: this Pathway requires several stages of O&M programming, starting in Phase 2:
- Create and submit a final EEM package, called an Action Plan.
220.127.116.11 – Action Plan Development and Project Team Recommendations
While no longer required, DOEE recommends project team members complete an Integrated Design Workshop which provides team members and opportunity to share early design ideas and experiences on other projects.
*See the Guidebook for more details on DOEE’s expectations for what should be included in the Action Plan.
18.104.22.168 – O&M Program – Planning
Create and submit an O&M program with standard operating procedures that meet the specifications found in ANSI/ASHRAE/IES Standard 100-2018, (ASHRAE 100), Chapter 6, which addresses every applicable building system and element as outlined in Annex D and follows the implementation requirements laid out in Annex L. Addendum a to ASHRAE 100 updated Annex L, so building owners should refer to and follow this addendum when developing and implementing an O&M program.
*See the Guidebook for required O&M program documentation including a timeline for implementation, method for verification, requirements associated with ASHRAE 100-2018, and submission.
22.214.171.124 – Final EEM Selection Requirement
Based on the results of the energy audit (Phase 1) and the design process, the project team will select a final EEM package to implement (Phase 3). The final EEM package should include detailed descriptions, estimated costs, energy savings estimations, schematic design, and proposed methods to verify implementation of each EEM.
*See the Guidebook for the requirements for the final EEM package including the targeted savings (which must be at least 25% savings in site EUI), requirements for the breakdown of what can be included (which includes training and RCx activities), supporting documentation that must be submitted, and a proposal for how the implementation of the EEMs will be verified and submitted in Phase 3.
126.96.36.199 – Phase 2 Reporting Requirements
Due April 1, 2024
- O&M Program
- Final EEM Package
188.8.131.52 – Action Plan Approval
After meeting Phase 2 reporting requirements, DOEE will review the complete package and may request additional documentation or clarification on any of the submitted documents. After DOEE has completed its review, it will use the proposed information to create and issue an Action Plan Approval Letter which will include:
- Approval of the final EEM package with point values assessed on a 25-point scale based on the total energy savings estimated (used to determine alternative compliance penalty adjustments described in Chapter 6);
- Approval of proposed documentation methods for the Phase 3 Implementation Verification; and
- Approval of proposed documentation methods for O&M program implementation, if audited.
The building owner will have 30 days to file an appeal by submitting a revised Action Plan.
All items included in the Action Plan Approval Letter become requirements of the Prescriptive Pathway for that building and a building owner must successfully complete all of the requirements to be in compliance.
- Develop an O&M program to address existing operations and maintenance in the building.
Once the Action Plan (from Phase 2) is approved, the building enters the Implementation Phase (Phase 3). Any changes to the EEMs from the approved Action Plan must be reported and approved by DOEE prior to implementation.
Phase 3 submissions include the Implementation Report and supporting documentation to verify the EEMs were installed as approved, and an attestation of implementation of the O&M program.
184.108.40.206 – Implementation Verification Requirements
This contains a summary of the implementation, testing, and commissioning work completed during Phase 3. If an EEM is not complete due to timing or climatic conditions, the building owner will describe the issue in the report submission, along with the steps needed to complete the EEM in Phase 4. In addition to the verification submission, the building owner will submit any supporting documentation required.
220.127.116.11 – O&M Program – Implementation
During Phase 3, the building owner implements the O&M program as approved at the end of Phase 2.
18.104.22.168 – Phase 3 Reporting Requirements
Due April 1, 2026
Implementation report, including:
- Verification with supporting documentation
- O&M program implementation attestation
The building owner evaluates the success of each EEM to help the owner understand how the project has affected their building, assess any shortcomings in implementation, and make necessary corrective actions to bring the building up to the expected savings level.
In this Phase, the owner will also complete any remaining actions from project implementation, such as final commissioning of equipment, and an update of the O&M program and attest to its implementation. If RCx was pursued as an EEM, the building owner will be required to submit a Final Retro-Commissioning Report as part of the Evaluation, Monitoring, and Verification Report.
22.214.171.124 – Post-implementation Analysis Requirements
Complete an analysis which includes recalculating the effectiveness of the EEMs listed in the approved Action Plan through calculation of the realized savings, ROI, and SIR for each EEM (if sub-metered) and for the Action Plan as a whole.
126.96.36.199 – Unfinished Phase 3 Verification Requirements
Complete any deferred acceptance testing or commissioning not possible in Phase 3 due to timing or climatic conditions. Submit supporting documentation on the completed testing activities to DOEE through the Unfinished Phase 3 Verification submission.
188.8.131.52 – O&M Program – Reporting
Update the O&M program to account for the EEM measures installed during Phase 3. Submit the updated O&M program document at the end of Phase 4 through the O&M Program Final Update.
184.108.40.206 – Phase 4 Reporting Requirements
Due April 1, 2027
Evaluation, Monitoring, and Verification Report including:
- Post-implementation Analysis
- Unfinished Phase 3 Verification, if required
- Updated O&M Program and Attestation
Chapter 4 – Alternative Compliance Pathway (ACP) Options
There are multiple forms an ACP can take, and the final requirements will be specified in the ACP Decision Letter (detailed in Section 4.1). DOEE has outlined a number of options that building owners may propose to use for the ACP and DOEE will readily approve. This chapter provides guidance and further explanation of DOEE’s policy related to the ACP options.
This chapter is divided into sections based on the ACP options. As a default, buildings will use the baseline years of CY2018-2019 and an evaluation year of CY2026 unless the Pathway energy performance requirements are evaluated over multiple Compliance Cycles.
Alternative Compliance Pathway (ACP)
Submit a proposal, as outlined below. DOEE will review the proposal, may request additional documentation, and will use the proposed information to create and issue an ACP Agreement. The Letter will include:
- the status of the decision: approved, approved with modifications, or rejected,
- the performance-based and/or action-based energy performance requirements
- the documentation methods that will serve as the reporting/verification requirements.
The building owner will have 30 days to file an appeal by submitting a revised ACP proposal.
All items included in the ACP Agreement become requirements of the Pathway for that building and a building owner must successfully complete all of the requirements to be in compliance.
Two options, Accelerated Savings Recognition (ASR) and Extended Deep Energy Retrofits (EDER) for building owners that have targeted a higher savings goal than required under a Principal Pathway.
4.2.1 Accelerated Savings Recognition (ASR)
For buildings owners who have achieved deep energy retrofits (as outlined below) in Cycle 1 that wish to have certainty around long-term compliance.
A building will follow the energy performance and reporting/verification requirements of its approved Principal Pathway for Cycle 1. If the energy performance at the end of Cycle 1 reaches a level listed below, the building is eligible to choose the ASR option ACP Option in future Cycles.
Site EUI Savings (Cycle 1) Eligibility for ASR Maintained Site EUI Savings Requirement Level 1 36% Cycle 2 27% by end of Cycle 2 Level 2 49% Cycle 2 and 3 37% by end of Cycle 2 and 3 Level 3 59% Cycle 2, 3, and 4 44% by end of Cycle 2, 3, and 4
The building must demonstrate it has maintained at least 75% of the level’s savings by the end of each Cycle. Buildings that do not maintain savings will have an opportunity to implement corrective measures.
4.2.2 Extended Deep Energy Retrofits (EDER)
- Affordable housing buildings (referred to as “Affordable Multifamily Housing”)
- Rent-controlled buildings
- A College/University/Hospital campus (referred to as “Campuses”)
- For Cycle 1, buildings that are under financial distress due to the COVID-19 PHE that may wish to implement deeper retrofits to target higher energy savings that exceed the energy performance requirements over several Cycles. (these buildings may only request a 2-Cycle EDER option, explained below).
In exchange for additional time to achieve energy savings, this option requires more robust energy performance targets to make up for lost early savings.
EDER Option Energy Performance Limits are as follows:
Cycle Length Minimum Site EUI
Maximum Site EUI
2-Cycle EDER 30% 40% 3-Cycle EDER 45% 60%
*See the Guidebook for a detailed description of how site EUI savings target will be established.
220.127.116.11 EDER Submission and Approval
In addition to selecting a pathway, building owners must complete an EDER Proposed Milestone Plan by April 1, 2023. The owner must also include a backup Pathway Selection that will be used if the EDER ACP Option proposal is not agreed to.
*See the Guidebook for requirements for the EDER Proposed Milestone Plan, including project description and supporting documentation.
DOEE will review the proposed plan and if approved, will prepare an ACP Agreement that outline the energy performance requirements, reporting/verification requirements and deadlines, and the alternative compliance penalty.
- Buildings issued a New Building Core and Shell Certificate of Occupancy from DCRA before the beginning of the BEPS Period (2019-2020) and did not submit a 2019 District Benchmark Report
- Buildings mid-Compliance Cycle that undergo a renovation resulting in a change of property type and receive its Use Change Certificate of Occupancy from DCRA before the end of the evaluation year(s). (Buildings that change property types may also be eligible for a delay of compliance per Chapter 5.)
4.3.1 New Construction ACP Option Requirements
A new building may meet the energy performance requirements by meeting its Standard in the first calendar year of the Compliance Cycle (CY2021 for Compliance Cycle 1). If the building meets or exceeds its Standard, the building has met its energy performance requirements and no Completed Actions Report is required.
If a new building does not meet its Standard in its complete, accurate, and verified CY2021 Benchmark Results and Compliance Report, the energy performance requirement would be that the building must meet its Standard by the end of the Cycle. Performance metrics and reporting/verification requirements for this option are the same as the Standard Target Pathway. Unlike the Standard Target Pathway, which is available only to buildings in a high performing property type, this ACP option is available to all property types.
4.3.2 Change of Property Type ACP Option Requirements
Buildings with a change in property type as described in Section 4.3 and selecting the Change of Property Type ACP Option are required to meet the Standard for its new property type by the end of the Cycle. Performance metrics for this option are the same as the Standard Target Pathway and the option has the same reporting/verification requirements, except for the deadline for the Pathway Selection Form, which is due one year after the building receives its Certificate of Occupancy. Unlike the Standard Target Pathway, which is available only to buildings in a high performing property type, this ACP option is available to all property types.
DOEE will only approve adjustments that are in response to a permanent change to a building. Temporary and short-term changes (less than 5 years) that impact energy performance will not be considered for a baseline adjustment.
There are two types of baseline adjustments:
- Baseline year shift. A building may use different calendar year(s) as its baseline for the energy performance requirements. This type of baseline adjustment is designed to address situations that occurred before the Cycle begins.
- Baseline Site EUI modification. A building may request a modification to the baseline site EUI based on a measured or estimated energy consumption that is incurred for activities during the Cycle. This type of baseline adjustment is designed to address situations that occurred after the Cycle begins.
4.4.1 Baseline Adjustment Eligibility and Methodology
A building must meet one of the following circumstances during the evaluation year (2018-2026) to apply:
- Implemented EEMS during CY2018-2020
- Low occupancy (see Appendix B for thresholds)
- An addition or demolition that significantly affects energy consumption due to square footage change
- New construction or demolition on a Campus
- For historic properties where meeting the requirements is impossible due to historic building restrictions
- The installation of new or increased ventilation or filtration systems
- Buildings that replace high Global Warming Potential (GWP) Refrigerants with low/no GWP that result in a loss in energy efficiency
- Other circumstances, as determined by DOEE
4.4.2 Baseline Adjustment Process and Documentation
Submit a Pathway Selection Form or Pathway Change Application that identifies the pathway for which they would like an adjustment, along with supporting documentation. Note that Benchmarking reports submitted as part of this application must be third-party verified.
- Baseline year shift. Third-party verified benchmarking reports for both the year(s) being shifted to and the year(s) being shifted from
- Baseline EUI modification. Third-party verified benchmarking reports for the year(s) being modified
*See the Guidebook for examples of supporting documentation per circumstance that could be submitted with the request.
DOEE will consider alternative approaches to improving energy efficiency that might not be possible under the current compliance structure.
*See the Guidebook for required criteria and which methods would not be considered acceptable for compliance.
4.5.1 Custom ACP Option Proposal Process and Requirements
A building owner who wants to use a Custom ACP option should propose it as part of the Pathway Selection or Pathway Change Application. All Custom ACP option proposals must be submitted no later than the Pathway selection deadline of April 1, 2023.
*See the Guidebook for requirements on the Custom ACP Option.
Chapter 5 – Delay of Compliance
If a building owner needs additional time to meet a Pathway’s energy performance requirements that extends beyond the end of the Compliance Cycle, it must obtain DOEE approval of a delay to avoid an alternative compliance penalty. This chapter provides further guidance on the eligibility criteria, how to apply for a delay, and how DOEE will evaluate applications.
Delays. A building owner can request a delay and must demonstrate the infeasibility to meet the energy performance requirements at the end of a Compliance Cycle is due to one or more of the specific circumstances. Delays of up to three (3) years may be granted. Qualifying affordable housing building owners are eligible for more than three (3) years of delay. Delays will not change the start of the following BEPS Period or new Compliance Cycle. DOEE will not automatically approve requests for delays, may not grant the duration requested, or may also establish conditions for the approved delay.
Extensions. If a building owner needs additional time to meet interim reporting or verification deadline, the owner may request an extension (Section 2.2).
Delays of Compliance
For Cycle 1 only, a building owner shall automatically receive a one-year delay due to the COVID-19 PHE upon DOEE receipt of the building’s 2020 District Benchmark Results and Compliance Report that demonstrates the building was operational during that time. A building owner can request to opt out of this delay.
Building owner must provide substantial evidence or documentation that demonstrates to the satisfaction of DOEE (1) the occurrence or existence of one or more of the eligible circumstances and (2) that due to the circumstance, meeting the energy performance requirements by the end of the Compliance Cycle is infeasible.
5.2.1 Eligibility Circumstances
Buildings that meet one or more of the following circumstances may request a delay. Additional criteria for qualifying affordable housing are covered in Section 5.3.
- Financial distress
- Change of ownership during a Compliance Cycle
- Major renovation
- Building becomes unoccupied
- Pending demolition
- Change in Property Type
- Historic Building
- Innovative approach to energy efficiency
*See the Guidebook for additional details for each circumstance.
5.2.2 Process and Documentation Requirements
Submit a Delay of Compliance Form including the length of delay requested, a narrative explaining the need for the delay, and how one or more of the eligibility criteria in Section 5.2.1 creates the infeasibility of meeting the Pathway requirements on time.
18.104.22.168 Documenting Eligible Circumstances
Applicants must provide supporting documentation to demonstrate good cause for approval of the delay based on one or more of the eligibility criteria.
*See the Guidebook for examples of acceptable documentation.
22.214.171.124 Demonstrating Infeasibility
Demonstrate how the circumstances of the applicable eligibility criteria make it practically infeasible for the building to meet the energy performance requirements during the Compliance Cycle. DOEE decides practical infeasibility based on the evidence submitted and will consider whether there are circumstances beyond the control of the building owner that:
- would impose a significant burden on the building’s ability to meet the energy performance requirements during the Compliance Cycle, OR
- render compliance not possible without significant burden that could be avoided if a delay is approved.
5.2.3 Delay of Compliance Approval Process
DOEE will review the request and supporting documentation and within 60 days of receiving the request will notify the applicant in writing if the delay is approved, approved with modifications, or rejected and issue a Delay of Compliance Decision Letter. The building owner will have 30 days to appeal the decision.
5.2.4 Delay of Compliance Performance ACP Option
An approved delay may require a shift in the evaluation period and/or adjusted reporting/verification requirements for its approved Pathway. To address complications from overlapping Cycles caused by a delay, DOEE may place a building on a Delay of Compliance Performance (DCP) ACP option in the following Cycle to ensure the building still achieves the same energy performance across multiple Cycles as buildings that did not receive a delay.
DOEE may approve a delay of compliance for more than three (3) years (extended delay) for qualifying affordable housing buildings which are:
- Primarily residential
- Contain 5 or more dwelling units,
- Can demonstrate one of the following:
- Use restrictions or other covenants require that at least 50% of the building’s dwelling units are occupied by households that have household income of less than 50% of the area median income (AMI)
- At least 50% of the dwelling units rent at levels that are affordable to households with incomes less than or equal to 50% of the area median income;
- The building is a Limited-equity cooperative (LEC).
DOEE will only approve an extended delay request equal to one (1) Compliance Cycle in length to help maintain Cycle alignment. Owners of qualifying affordable housing proactively seeking delays longer than one Cycle should pursue the Extended Deep Energy Retrofit Pathway (Section 4.2.2).
5.3.1 Eligible Circumstances
If the building meets the qualifying affordable housing definition, an extended delay may be requested if the building:
- Meets one or more of the delay eligibility criteria in Section 5.2.1,
- Can demonstrate practical infeasibility as described in Section 5.2.2 after taking advantage of available BEPS support resources to make progress toward compliance during the Cycle, and
- Completes an Extended Delay Milestone Plan to demonstrate it has sought compliance assistance and to propose a plan and milestones for moving forward.
5.3.2 Process and Documentation Requirements
Submit a Delay of Compliance Request Form and provide supporting documentation that proves the affordable housing qualification, eligible circumstances, and practical infeasibility, and provide a plan for moving forward (outlined in Sections 126.96.36.199 through 188.8.131.52).
184.108.40.206 Documenting Affordable Housing Qualification
Owners applying for an extended delay must submit documentation as evidence that the building meets the definition of qualifying affordable housing (Section 5.3.1).
*See the Guidebook for examples of documentation that can be used to demonstrate that a building is qualified affordable housing.
220.127.116.11 Documenting Eligible Circumstances
Owners applying for an extended delay must document the existence of one or more eligibility criteria in accordance with Section 18.104.22.168.
22.214.171.124 Demonstrating Infeasibility
The building owner must also demonstrate how the circumstances of the applicable eligibility criteria make it practically infeasible for the building to meet the performance requirements during the Compliance Cycle. The Delay of Compliance Request Form should include:
- what efforts were made to attempt on-time compliance,
- why they were unsuccessful and/or why they left needs unmet,
- what technical and/or financial assistance from at least three of DOEE’s supporting partners (such as DC Green Bank, DCSEU, Building Innovation Hub, or other utility-led energy efficiency incentive programs, etc.) were pursued to avoid or minimize the need for an extended delay, and
- why a delay would enable compliance better than any alternative (such as the Extended Deep Energy Retrofit ACP or a Custom ACP options).
126.96.36.199 Extended Delay Milestone Plan
Along with the Delay of Compliance Request Form, building owners must propose a plan for how they will achieve compliance with the energy performance and reporting/verification requirements in the extended timeline through submission of the Extended Delay Milestone Plan along with any supporting documentation.
*See the Guidebook for details on what must be included in the Extended Delay Milestone Plan.
5.3.3 Extended Delay of Compliance Approval Process
DOEE’s preferred outcome for approving extended delays is for the building to target and achieve additional energy savings beyond the one-Cycle energy performance requirement of 20% site EUI reduction. As a result, the inclusion of substantive plans to achieve greater than 20% energy savings during an extended delay will strengthen a building’s application for a delay.
DOEE will review the extended delay request and may request additional documentation or clarification. After DOEE has completed its review, it will use the proposed information to create and issue an Extended Delay of Compliance Decision Letter. After DOEE has issued the Extended Delay of Compliance Decision Letter, the building owner will have 30 days to appeal the decision.
Chapter 6 – Enforcement
Mechanisms to promote compliance include:
- An alternative compliance penalty, for failure to meet the energy performance requirements of a building’s approved Pathway at the end of a Compliance Cycle. See Section 6.1.
- Civil infractions for not meeting required, interim reporting deadlines or requirements. See Section 6.2
Building owners that fail to demonstrate complete implementation of the energy performance requirements of a Compliance Pathway by the end of the Compliance Cycle must pay an alternative compliance penalty. The maximum penalty amount is based on the gross floor area of the building and is adjusted proportionally based on the building or campus’ actual performance relative to its Pathway target.
The maximum penalty for buildings is $10 per each square foot of gross floor area and no greater than $7,500,000.
*See the Guidebook for more details on the adjustment factors for each Pathway.
Additionally, any building owner that knowingly withholds information, submits inaccurate information, knowingly implements an energy efficiency measure that reduces indoor environmental quality, or implements any other energy efficiency measure that poses a threat to the health and safety of a building occupant or user may be subject to assessment of the maximum alternative compliance penalty regardless of the building’s performance relative to its Pathway target.
An owner may be levied fines for violating reporting requirements or deadlines during the compliance cycle.
*See the Guidebook for the BEPS Schedule of Fines.
For more information regarding the civil infraction enforcement process, please go to DOEE’s Office of Enforcement and Environmental Justice web page.
In addition to, or instead of, an alternative compliance penalty or civil infraction, the DC Attorney General may file an enforcement action against a building owner in DC Superior Court for damages, cost recovery, reasonable attorney and expert witness fees, or an injunction (a court order for a specific action).