BEPS Standards and Compliance Rules Finalized

The District Department of Energy & Environment (DOEE) published the

• Final Building Energy Performance Standards compliance regulations on November 5, 2021.
• Final 2021 BEPS Establishment Regulations (i.e. the median ENERGY STAR scores by property type) on April 30, 2021.
• Version 1.1 of the Building Energy Performance Standards Compliance and Enforcement Guidebook, which provides specifics instructions and details on on February 22, 2023. (Version 1.0 issued on March 23, 2022 is also available).
• Final Benchmarking rules on October 21, 2021.

What has been released?

The Final BEPS Compliance Regulations

The final BEPS Compliance Regulations include:

• A summary of public comments received on the second proposed BEPS Compliance Regulations, DOEE’s response, and the corresponding changes made
• Specific instructions to owners and operators of privately-owned buildings on how to comply with the BEPS
• How to determine if the BEPS applies to your building
• The performance and procedural requirements for buildings that do not meet the BEPS

The changes made from the second proposed BEPS Compliance Regulations are summarized in the Preamble and the redlined version of the final regulations. The rules were updated to include feedback from the second round of public comment and to generally clarify language. Additionally, that feedback was taken into account in refining the BEPS Compliance Guidebook, which provides additional program details.

Sized-based timeframes. Buildings of the following sizes would enter into compliance cycles on the following timelines:

Note: See updates to the benchmarking rules below, which include when buildings smaller than 50,000 sq. ft. would need to commence benchmarking their performance. Read our overview of the Benchmarking regulations for more information.

Compliance cycles. Compliance cycles are typically five years long. Each cycle is followed by what is effectively a “gap year” which allows DOEE time to review submitted benchmarking data and reset the standards for the next compliance cycle. COVID-19 pandemic, the rules include a delay of the end of the first compliance cycle by one year, making it six years long and ending on December 31, 2026.

Compliance pathways. An owner of a building that does not meet the BEPS shall implement one of the following compliance pathways to be considered compliant:

• Performance pathway. Buildings must demonstrate a 20% reduction in site EUI. To set their baseline with the COVID-19 delay, buildings must use an average site EUI taken from the two years preceding the first compliance cycle (2018 and 2019). To determine compliance, buildings must demonstrate the aforementioned decrease by using the site EUI of the last year of the compliance cycle (2026).
• Standard target pathway. Buildings must meet the reported standard for their property type during the last year of the cycle (2026). Note: this is only available to buildings where the Standards are at least as energy efficient as the national median.
• Alternative compliance pathway. A plan proposed by a building owner and approved by DOEE that is designed to achieve energy savings comparable to the requirements in the performance pathway.
• Prescriptive pathway. Building owners must meet reporting milestones across four phases and complete agreed-upon improvement measures outlined in the “final action plan agreement,” a plan signed by both DOEE and the building owner which would achieve energy savings comparable to the requirements in the performance pathway. Submission requirements include:
  • Phase 1. An energy audit.
  • Phase 2. A final list of energy efficiency measures selected for implementation and an operations and maintenance program.
  • Phase 3. An implementation report that includes permit drawings, permits, inspection reports, or other documentation pertaining to the implementation of selected energy efficiency measures.
  • Phase 4. An evaluation, monitoring, and verification report that includes a narrative describing the savings achieved and any corrective actions taken and an updated operations and maintenance program that reflects the energy efficiency measures implemented.

All buildings will be defaulted to a COVID-adjusted timeline, which requires building owners to select a compliance pathway no later than April 3, 2023. Building owners that do not wish to receive this delay must contact DOEE directly.

Exemptions and delays. Also included is the process for building owners to apply for an exemption from or delay (up to three years) in meeting the required compliance criteria. This includes special references to affordable housing buildings, whose delay can be greater than three years. Any approved delay does not extend deadlines or negate the requirements associated with the next compliance cycle. Note: for BEPS Cycle 1 the COVID-adjusted timeline is counted as one-year, of a possible three-year delay.

Compliance penalties. Failure to demonstrate compliance by the end of a compliance cycle would result in the following maximum penalties (referred to in the rules as “alternative compliance penalties”). The maximum penalties are set to $10 per square foot of gross floor area and are capped at $7,500,000. The penalty for noncompliance would be reduced proportionally to the building’s demonstrated performance relative to its pathway target.

A building owner may be assessed the maximum penalty, regardless of the building’s performance relative to its pathway target, in addition to any other applicable fines, if the building owner:

• Knowingly withholds information
• Submits inaccurate information;
• Fails to submit a complete and accurate benchmarking report at the end of the compliance cycle
• Implements a measure that poses a threat to the health and safety, including the reduction of indoor environmental quality, of a building occupant.

In addition to penalties for noncompliance at the end of the compliance cycle, an owner may be levied fines for violating reporting requirements or failure to meet deadlines during the compliance cycle.

Additional information on Alternative Compliance Penalties and Civil Infractions can be found in Chapter 6 of the guidebook.  

Submitting documentation. The rules include a reference to an “Online BEPS Portal,” a web-based application created by DOEE for a building owner to submit required reporting and verification documents pertaining to BEPS.

The guidebook

The Building Energy Performance Standards Compliance Guidebook includes commentary, additional details into the specific requirements of each compliance pathway, how to request exemptions and delays of compliance; and compliance reporting procedures.

Read our overview of the BEPS Compliance Guidebook for more information.

Accompanying documents

DOEE also released an accompanying report generated by the BEPS Task Force, a group of diverse stakeholder representatives from the local building industry who provided input throughout the rulemaking process. The report aims to help the public better understand why the rules are the way they are, as well as explain the decisions that went into the task force’s recommendations.

The Final Standards for BEPS Period 1 (2021 – 2026)

The Standards, i.e. the median levels of performance per property type, (also referred to as the “BEPS Establishment Regulations”) came into effect on January 1, 2021. The Standards  include performance targets based on ENERGY STAR score (for buildings that can receive a score) and Source EUI (for buildings that cannot receive an ENERGY STAR score).

For more information on how the Standards were calculated, DOEE released a guide with information on how the property type groups, metrics, and standards were developed.

The table below only shows the property types with the largest building counts in the District. For a full list of property types and their applicable standards, refer to the information in the DC Register. These standards apply to the first BEPS Period and will be re-established for the next BEPS Period (starting on Jan 1, 2027).

For buildings that can receive an ENERGY STAR score, a building will not meet the standards if, based on its 2019 energy benchmarking data, its score is less than the ENERGY STAR score standard listed for their property type.

Past Deadline: Owners of buildings that do not meet the Standard for their property type and meet specific criteria may request to use their 2018 energy benchmarking data or adjust their standard by submitting a variance request to DOEE by January 1, 2022. Please see the DOEE website to see if you qualify for a variance.

Final Updated Benchmarking Rules

The updates to the final updated benchmarking rules include lowering the size threshold for buildings covered by the benchmarking requirements, establishing new third-party data verification requirements, and addressing changes from other laws and the ENERGY STAR Portfolio Manager tool.

Size thresholds. Buildings of the following sizes would be required to commence benchmarking their performance as follows:

Third-party data verification requirements. Building owners are required to obtain third-party data verification of benchmarking data from an approved verifier beginning in 2024 for data submitted for calendar year 2023. Verification is required every three years thereafter and would be submitted as part of the District Benchmark Results and Compliance Report by the April 1 deadline of each verification year. Note: The 2024 deadline for benchmarking and third-party verification has been extended to July 1, 2024 for this cycle only.

An approved verified must not be an employee of the building owner or of the building owner’s designee who prepares or submits benchmarking information, and must possess one of the following licenses, credentials, or certifications:

• Professional Engineer (PE)
• Licensed Architect
• Certified Energy Manager (CEM)
• Building Energy Assessment Professional
• Any other additional data verifier license or training program credentials recognized by DOEE and posted to its website

A building owner may use ENERGY STAR certification, which includes third-party data verification, to meet the third-party verification requirements if the certification period overlaps with the calendar year requiring data verification by a minimum of 6 months.

The verifier is not required to conduct a site visit or complete the waste or indoor air quality section of the Data Verification Checklist to meet this requirement.

Other updates. Additionally, the final rules include:

• Requiring the use of whole-building utility data, including aggregate data directly from utilities when applicable
• Clarifying that sellers must provide buyers with the information needed to benchmark during the year a transfer occurs.
• Clarifying that properties are no longer exempt from reporting due to a transfer of ownership.
• Addressing updates to the ENERGY STAR Portfolio Manager tool.
• A requirement that the District Benchmark Results and Compliance Report must include:
  • Complete and accurate values, meaning that no default, estimated, or temporary values can be used unless a reasonable explanation is provided.
  • A DC Real Property Unique Identifier.
  • The name and contact information for the building owner/operator.
  • Confirmation that a building owner has run all automated data quality checker functions within Property Manager prior to submission.
• Extended record retention requirements such that all records documenting benchmarking reports, not just years requiring data verification, and associated data to be retained for eight (8) years.
• Clarification that a building owner is not required to request any data from individual residential residents.
• Allowing certain property spaces to be excluded from benchmarking reports if they meet the criteria outlined by the US EPA.
• Clarification of violations and the enforcement process.

Want to learn more?

Links to all the proposed and final documents are posted to the DOEE BEPS Program Rulemaking and Public Comments page.