DOEE DC Releases Long-Awaited Proposed Flood Code Changes for District

The District of Columbia Department of Energy and Environment (DOEE) published a Proposed Rule on July 19, 2024 to adopt amendments to the Flood Hazard Rules (Rules) contained in Chapter 31, Title 20 of the District of Columbia Municipal Regulations (DCMR). The proposed changes are intended to increase the District’s resilience in the face of climate change, sea level rise, and extreme rainfall events, including preparing residents and facilities for floods and minimizing public and private losses caused by flooding.

This highly anticipated Proposed Rule comes after several years of stakeholder engagement by DOEE, which began in 2020 when DOEE unveiled its updates to the Flood Hazard Rules to address increased flood risks from climate change and sea level rise. (See previous Holland & Knight alert, “DC’s Department of Energy & Environment Proposes Major Changes to Flood Hazard Regulations,” April 7, 2020.) As part of the engagement process, DOEE solicited informal public comments on the proposed modifications to the Rules and held technical workshops on a variety of topics, including mapping and delineation, granting rights and implementation dates for rule changes, and issues relevant to commercial, mixed-use, and multifamily buildings.

Importantly, the Flood Hazard Rules currently regulate activities such as construction of buildings within the Federal Emergency Management Agency (FEMA) 100-year floodplain. The proposed rules would expand the regulated “flood hazard area” to include areas within the FEMA 500-year floodplain, including any area that has been removed from the flood hazard area due to the Letter of Map Revision Based on Fill (LOMR-F) and areas on Rhode Island Avenue NE that are susceptible to internal flooding (i.e., those below the design flood elevation of 96.5 feet). If the property is partially within the flood hazard area, the proposed rules would not apply if the structure is completely outside the flood hazard area. DOEE noted that several other cities—including Houston, Baltimore, and Austin—have recently adopted regulations affecting development within the 500-year floodplain. DOEE received significant input on the definition of flood hazard in its review of the 2020 proposed changes, including comments from the development community regarding the additional financial burden that would be imposed on developers building in 500-year floodplains. DOEE states that it commissioned two cost-benefit analysis reports that showed that these flood mitigation retrofits would provide a return on investment of 6 to 1 in avoided damages, with the majority of these costs being incurred in Districts 6, 7, and 8. Notably, in response to these comments, DOEE removed the proposed requirement that property owners/developers in the 500-year flood hazard area would have to provide proof of flood insurance prior to the final inspection of the structure and continuously throughout its useful life.

Other significant changes to existing flood risk regulations outlined in the proposed regulation include:

Significant improvements. The proposed regulations would change the definition of a “substantial improvement” to include “any combination of repairs, alterations, renovations, additions, modifications, or improvements to a building or structure made during the construction of a building or structure.” The period of 5 years immediately preceding the submission of the application for a permit. ” (emphasis added) The proposed regulations include a slightly modified definition of “substantial improvement” for alterations to the 500-year floodplain: The full requirements of the regulations would not apply if the improvements are made to a detached one- or two-family home or townhouse no more than three stories above grade with a separate exit located completely outside the flood hazard area, if the improvements cost less than $200,000. There is no comparable exception for multifamily buildings. These proposed changes represent a significant departure from the current definition of “substantial improvement,” which means any repair or improvement that equals or exceeds 50 percent of the assessed value of the structure before construction begins. DOEE has indicated that the purpose of this proposed change is to prevent applicants from obtaining minor permits for smaller projects in order to avoid classification as a substantial improvement.
Designing flood heights. The proposed regulations change the design flood elevation (DFE) to the 100-year flood elevation plus two feet (2 feet) of freeboard or the 500-year flood elevation, whichever is greater. Current flood hazard regulations require that buildings be elevated or flood-proofed by one and one-half feet (1.5 feet) of freeboard. Current D.C. building codes apply these requirements within the 100-year flood plain, but the requirements would be expanded to include the 500-year flood plain as well.
Alliances and agreements. Applicants would be required to file a covenant regarding obligations regarding the operation and maintenance of flood protection systems. They would also be required to file a non-conversion agreement with the land registry to ensure that the approved non-residential use is not later converted to a residential use. DOEE intends to publish templates and model agreements on its website at a later date.
No negative impact. The proposed regulations would require applicants to demonstrate that their proposed development in a flood hazard area will not adversely affect other properties by increasing the regulatory flood height or expanding the flood zone. This would be done through a No Rise certificate. Some exceptions are provided for projects such as stream restoration or flood control.
Hazardous materials. Current flood regulations require that new or substantially improved structures that will be used to manufacture or store more than 550 gallons of 18 “potentially hazardous materials” obtain special permits. The proposed regulations would expand on that by requiring property owners/developers to report the storage of a more extensive list of hazardous materials and prepare a flood emergency plan to deal with the hazardous materials. The flood emergency plan could be incorporated into a spill prevention, control, and mitigation plan (SPCC) or stormwater pollution prevention plan (SWPPP) if the facility is otherwise required to have one of those plans. These properties would also have to meet the proposed “critical facilities” requirements.
Critical objects. The proposed regulations prohibit construction of new or substantially improved critical facilities in flood-prone areas without an analysis of alternatives and stringent protective measures. The list of proposed critical facilities is extensive and includes hospitals and health care facilities, police and fire stations, shelters and short-term family housing facilities, buildings owned or operated by the District, schools and child care facilities, emergency shelters, power plants, facilities that store or use hazardous materials, and many other structures—such as communication towers and fuel or water tanks—that are critical in emergencies. Public housing units are not included in the list of critical facilities.
Underground garages. The proposed regulations maintain the existing ban on underground parking garages under multifamily residential buildings in 100-year floodplains. Common areas, gyms, and other nonresidential amenities accessible only to residents would be required to be elevated in buildings in 100-year floodplains (rather than flood-proofed). Under the proposed amendments, mixed-use projects would now be permitted to have underground parking garages “as a matter of right” and would no longer be required to obtain a variance or code modification. This is an important change that was negotiated with FEMA staff because previously it was unclear whether mixed-use buildings would be considered residential or nonresidential under FEMA guidelines.
Historical objects. Historic structures are not covered by the current Flood Hazard Rules. The proposed rules would require a coordinated review with the State Historic Preservation Office (SHPO) to ensure that the required flood protection is achieved to the maximum extent possible while preserving the historic designation of the structure.
Tidal shoreline buffer zone. The proposed regulations would create a tidal shoreline buffer zone that would include areas that are expected to be inundated by sea level rise by 2080 (the DOEE’s announced 2020 amendments used 2100). Only 1 percent of private land is within the proposed tidal shoreline buffer zone. The amendments would prohibit the conversion of any nonresidential space below the tidal shoreline flood level to residential use. Additionally, any applicant for new construction or significant improvements within the tidal shoreline buffer zone would be required to submit specified information to the DOEE, including an assessment plan, a comprehensive resilient systems plan, and an analysis of alternatives.
Mixed-use projects. Mixed-use projects are not covered by the District’s current flood hazard rules. The proposed rules would require that the lowest floor of each mixed-use building be at or above the DFE or be designed and constructed to be dry floodproof during any flood event to the DFE. The lowest floor of the residential portion of each mixed-use building would be at or above the DFE. The proposed rules would also prohibit the conversion of any nonresidential space below the DFE to residential space.
Administrative roles. The proposed regulations establish the respective roles of the DOEE Director, the Department of Buildings (DOB), and the Historic Preservation Office (HPO). The DOEE Director is to coordinate the review and approval process with the DOB to ensure that the site is reasonably safe from flooding. The HPO is expected to review any permit applications for the repair or rehabilitation of historic structures.
Fees. DOEE is proposing new fees to administer the program, ranging from about $800 for one- or two-unit dwellings to $10,000 for large developments with four or more stories or six or more units. DOEE is proposing a range of additional fees for various activities, from the pre-design meeting to reviewing hydrologic and hydraulic studies to re-application fees if the application must be submitted four or more times.
Transition and implementation. DOEE proposes that changes to flood risk regulations be implemented at Date of publication final rule. DOEE’s rationale is that since March 2020, DOEE has been publicly discussing the changes with the regulated community. DOEE further proposes that any development project in a flood hazard area that has not submitted a complete application within 30 days of the date of publication of the final rule be subject to the revised requirements. However, any project that has received an approval or final report from various agencies (including SHPO, Commission on Fine Arts, Zoning Board for a variance, etc.) that DOEE determines is inconsistent with the revised regulations will be permitted to comply with the previous regulations, provided that a permit is obtained within six months of publication of the revised regulations.

DOEE is accepting public comments on the proposed rule until September 2, 2024. Comments should be submitted via email.