April 7, 2020

D.C.'s Department of Energy & Environment Proposes Major Changes to Flood Hazard Regulations

Holland & Knight Alert
Norman M. Glasgow Jr. | Christine M. Shiker | Amy L. Edwards | Aaron S. Heishman | Christopher S. Cohen

The Department of Energy & Environment (DOEE) in Washington, D.C., has announced its intent to propose significant changes to its flood hazard regulations at Title 20 DCMR Chapter 31. These changes are designed to make the District more resilient in the light of climate change, sea level rise, extreme rainfall events and various National Oceanic and Atmospheric Administration (NOAA) models that depict significant flooding in portions of the District by the year 2100. The DC Flood Risk Tool is a user-friendly map that shows the 100- and 500-year floodplains as well as areas of the District that are susceptible to sea level rise and various levels of storm surge.1

The District's flood hazard regulations currently govern activities such as building construction within the Federal Emergency Management Agency's (FEMA) 100-year floodplain. DOEE's proposed changes would expand the regulated flood hazard area to include the FEMA 500-year floodplain. Similar measures to regulate activities within the 500-year floodplain have been enacted in other flood risk cities, such as Baltimore, Houston and Austin.

Other significant changes under consideration include:

    • Design Flood Elevation. All new and substantially improved buildings within the 500-year floodplain would have to be elevated or flood-proofed to the base flood elevation (BFE) plus two feet, or the high flood elevation, whichever is higher. The current flood hazard regulations require buildings to be elevated or flood-proofed to the BFE plus 1.5 feet.
    • Flood Insurance. Property owners/developers with structures located within the 500-year flood hazard area would have to provide proof of flood insurance prior to the final inspection of the structure and continuously for the life of the structure. The amount of insurance coverage required would be the lessor of 1) the maximum amount of insurance available through the National Flood Insurance Program (NFIP), or 2) the insurable value of the property minus the value of the land on which the structure is located.
    • Buffer Areas. The proposed updates would create a Tidal Shoreline Buffer that would include areas that are expected to be inundated by sea level rise by the year 2,100. New development in this area would need to be protected to six feet above the high flood elevation. Additionally, a D.C. Parkland Buffer area would be established to protect D.C. parkland located in the 100-year floodplain upstream of backwater impacts by prohibiting all new development except park amenities. There are no such buffers under the current flood hazard regulations.
    • Critical Facilities. The new flood hazard requirements would prohibit new or substantially improved "Critical Facilities" in flood hazard areas without a variance (or alternative analysis) and stringent protective measures. The list of proposed Critical Facilities is expansive, and includes hospitals and healthcare facilities, police and fire stations, shelters and short-term family housing facilities, housing owned or operated by the District, schools and childcare facilities, emergency shelters, power generating stations, and numerous other structures that are critical during an emergency, such as communication towers and fuel or water storage tanks.
    • No Adverse Impact. A developer in a flood hazard area would no longer be able to "fill" a floodplain in order to remove it from the flood hazard regulations. In other words, the current practice of allowing an increase in 100-year flood elevations up to one foot would no longer be permitted.
    • Hazardous Materials. The current flood hazard regulations at 20 DCMR 3106.2 require new or substantially improved structures that will be used for the production or storage of more than 550 gallons of 18 "potentially dangerous materials" to obtain special permits. DOEE acknowledges that this regulation is not regularly enforced. The changes that are being considered would require property owners/developers to report the storage of a more expansive list of hazardous materials to prepare a flood emergency action plan to deal with hazardous materials during any stage of permit review.
    • Historic Structures. Historic structures are not addressed under the District's current floodplain regulations. The proposed rules would require coordinated review with the State Historic Preservation Office (SHPO) to ensure that required flood-proofing is achieved to the maximum extent practicable while still maintaining the structure's historic designation.
    • Mixed-Use Projects. Mixed-use projects are not addressed under the District's current regulations. The changes under consideration would prohibit any residential uses on the first floor, and would require the lowest floor of any residential portion of a project to be above the Design Flood Elevation (DFE). DOEE intends to better define what activities constitutes residential, nonresidential and mixed use, but has given no indication as to where it will draw those distinctions. This presents the development community with an important opportunity to try to shape those definitions to make them as practical as possible. For example, the ground floors of many residential apartment buildings have gyms and other communal spaces for residents. While these areas serve residents, treating them as residential under the flood hazard regulations would not save lives and would only force these amenities to be moved to higher floors or abandoned altogether, thereby adding unnecessary costs to projects without improving public safety.
    • Underground Parking Garages. DOEE has indicated that it intends to prohibit purely residential buildings from building underground parking garages unless they obtain a code modification. Mixed-use projects, however, would be allowed to use underground parking garages "by right" and no longer need to obtain a variance. These proposed changes would place another obstacle to delivering affordable housing in the District.
    • Grandfathering of Existing Projects. DOEE has suggested that it will likely include a transition period before the new flood hazard rules would apply to projects already in the pipeline. However, the DOEE has previously applied flood hazard "rules" that don't actually exist in the 500-year floodplain in the name of protecting human health and the environment, no matter the cost to the developer or the status of the development project. It will behoove the development community to put its best possible arguments forward to explain to the  DOEE why these new rules should not apply to projects already underway – thanks to significant commitments of time and resources.

DOEE is accepting informal feedback and comments on these proposed changes until April 17, 2020. These informal comments can be submitted by email to Nicholas Bonard and Martin Koch. A DOEE PowerPoint presentation summarizing the  potential revisions also is available here. After refining its draft rule, DOEE expects to issue a formal notice of proposed rulemaking later this spring.

If you have any questions regarding DOEE's proposed changes to its flood hazard regulations and their likely impact on the development community, or would like assistance preparing informal comments, please contact a member of Holland & Knight's Mid-Atlantic Land Use Team or National Environmental Team, including Partners Norman "Chip" Glasgow, Christine Shiker or Amy L. Edwards, or Associates Aaron Heishman and Christopher Cohen.

Notes

1 Department of Energy & Environment, DC Flood Risk Tool.


Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


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