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What has changed in DC’s new benchmarking regulations?
Guest post by Marshall Duer-Balkind
On July 20, the District of Columbia took an important step towards fully implementing DC’s groundbreaking energy benchmarking law by publishing a new proposed rulemaking in the DC Register, along with supporting guidance documents published online. DDOE has made numerous substantive changes since the last proposed rulemaking last October. You can download all these documents, including an extensive FAQ, on the District Department of the Environment (DDOE) website. You can also watch a video of the presentation from the July 31 public meeting.
It’s true that the publication of a proposed rulemaking is not the stuff of news headlines. It’s not sexy. But good regulations bring clarity and accountability to the enforcement of laws, and resolve potential problems before they arise. They are the key to making a groundbreaking policy like benchmarking succeed—or fail.
The regulations and guidance documents that DDOE just released aim to meet this higher standard. We have drawn from extensive public feedback, but also on the experiences of the other cities—New York City, Seattle, San Francisco, and Austin, Texas—with mandatory energy-benchmarking policies. These new regulations represent a compilation of best practices in energy benchmarking that others can look to. In this post, I will provide context for the changes and then outline them one by one.
Data Collection from Tenants and the Promise of Aggregate Data
In order to benchmark their building, building owners and managers are required to submit energy and water use as well as information about how spaces are used (e.g. operating hours, number of computers, etc.). This data is often only known to building tenants, so the landlord must collect it, and DDOE has the authority to fine non-residential tenants for not providing data to their landlord, at a rate of up to $100/day. Fortunately, no space use data is needed for residential buildings, but accessing energy and water consumption data is still tricky. There are privacy concerns for tenants and limits of feasibility for landlords. The old regulation borrowed NYC’s original plan of extrapolating whole building energy use from the set of tenant data that was provided voluntarily. In practice, this method was rarely used because there’s a simpler solution: aggregate utility data.
In NYC, Seattle, and Chicago, building owners can contact their local utility companies and request aggregate, whole-building level energy and water consumption data. The utility company simply adds up all the meter data for that building by month, and provides the totals to the building owner. . At DDOE, we see this data access as the best practice in energy benchmarking which both reduces the cost to building owners/managers and protects the privacy of tenants. While this service is not yet available in the District, DDOE is working with our local utility companies to make this the standard practice.
Changes to the Regulation:
1. No Residential Tenant Data Collection (§ 3513.5 & § 3513.7): So this is the first major change: until aggregate utility data is available, building owners/managers of residential buildings only need to report data from master meters, common spaces, and any non-residential tenants. The extrapolation methodology has been eliminated entirely.
2. Aggregate Data (§ 3513.5 & § 3513.7):: Once a utility has made aggregate data available, building owners/managers must use aggregate data for that utility (if and only if that service is available before February 1st of that calendar year). This applies to both non-residential and residential buildings. Non-residential building owners will always have to collect space use data from their tenants.
3. Increased Flexibility for collecting information from non-residential tenants (§ 3513.5, § 3514.6, and § 3513.12): Building owners are no longer required to use the DDOE-provided tenant information forms and letters as the only way to request data from tenants. Additionally, the time window within which vacating non-residential tenants must provide data to building owners has been broadened.
4. Warning Period Clarified (§ 3513.14): DDOE is now required to send a warning Notice of Violation to an owner or non-residential tenant who is non-compliant, and provide a 30-day warning period prior to issuing fines. This warning period is needed because of the time required to benchmark a building.
5. Instructions provided on handling instances of multiple buildings that share a tax lot (§ 3513.2(c) and § 3513.3(d)): Like the other cities, DC will use the property tax records to identify buildings covered by the law, yet in many cases, multiple buildings share a single tax lot, and sometimes, a single property covers multiple lots. To solve this problem, DDOE is proposing that that the thresholds for compliance and reporting reflect the best practice guidelines for ENERGY STAR benchmarking. That is, if a set of buildings share meters or systems without sub-metering, such that identifying their individual energy use is impossible, they should be benchmarked together, and the threshold for compliance must be based on their combined square footage. If an owner believes their buildings should not be covered, they should contact DDOE.
6. Updating previously submitted data (§ 3513.9): If new or corrected data becomes available after submission, a building owner will now have 30 days to enter the data into Portfolio Manager and submit an updated report to DDOE.
7. Delegation of Responsibility in single-tenant buildings (§ 3513.10): If a tenant has leased the entire building and manages the entire building, the building owner can, with the consent of the tenant, formally delegate responsibility for benchmarking to the tenant (In such cases, the tenant may not wish to disclose all the data on their operations and their energy use to the building owner, and the owner in turn may be an absentee landlord with limited involvement in the property.)
8. Reporting non-compliant tenants (§ 3513.4(b)): Building owners are required to report any non-residential tenants who did not provide data despite the owner making reasonable efforts to request it. This information is needed for full enforcement.
9. Deadlines for 2010 and 2011 data that is due this year (§ 3513.15): Because of the delays in finalizing these regulations, the legislative deadlines for 2010 and 2011 data have passed without any data being collected. Buildings over 200,000 gross square feet will report 2010 and 2011 data within 60 days from the day the regulation is finalized. Buildings 150,000-200,000 gross square feet will report only 2011 data within 60 days from the day the regulation is finalized.
The proposed regulations and all associated guidance documents are open for public comment through August 20, 2012. Submit comments by e-mailing . We would like to make a special solicitation for comments on both the content and form of the guidance documents, which can be updated without further delaying the finalization of the rulemaking.
Marshall Duer-Balkind is a program analyst in the District Department of the Environment’s Office of Policy and Sustainability (on detail from the Institute for Market Transformation), where he manages DC’s energy benchmarking program for private buildings.
