By Tim Schermetzler of CSD Attorneys at Law P.S.

Does your port own buildings that are 20,000 square feet or larger?  If so, between June 2026 and June 2028, your port will likely have to comply with Building Performance Standards (“BPS”) in the Clean Building Act, Chapter 19.27A RCW, adopted by the legislature in 2019 and amended in 2022 and 2023.[1]  There is no general exemption in the Act excluding government buildings, meaning many ports will be impacted by this BPS.  This month’s column explores the BPS requirements and outlines some considerations for ports implementing these standards.

What is the BPS?

At a basic level, BPS are exactly that—performance standards concerning energy efficiency and greenhouse gas emissions in buildings.  Unlike most new building and development regulations that only impact new construction, the Act imposes BPS on both new and existing buildings.  The reason for imposing BPS on existing buildings is in part because the life of buildings typically spans 50-100 years, or more, and retrofitting existing buildings to use less energy was seen as a cost-efficient way to reduce greenhouse gas emissions.

The Department of Commerce (“Commerce”) was tasked with developing and implementing the BPS, which are promulgated in Chapter 194-50 WAC.  In the WAC, Commerce adopted the ANSI/ASHRAE/IES Standard 100-2018 Energy Efficiency in Existing Buildings as the BPS regulatory standard.  This is a uniform regulatory standard created by the American National Standards Institute (“ANSI”), American Society of Hearing, Refrigerating and Air-Conditioning Engineers (“ASHRAE”), and Illuminating Engineering Society (“IES”) to create a standardized framework that states or cities can adopt as regulation.  In this respect, the ANSI/ASHRAE/IES Standard 100-2018 is similar to the International Building Code (“IBC”) published by the International Code Council and Uniform Plumbing Code (“UPC”) published by the International Association of Plumbing and Mechanical Officials, both of which are uniform regulatory frameworks adopted into law in Washington.

BPS are specific to the activity type in the building, e.g., office, public services, convention center, transportation terminal / station, etc.  The actual assessment of buildings under the BPS involves math equations to assess energy use intensity (“EUIt”) that look like this:

Which is another way of saying most ports are likely going to need to retain a consultant or engineer to assist with building assessments.

What is required to comply with the Act?

All Covered Buildings must comply with the Energy Management provisions of the BPS in the Act.

These Energy Management provisions include, among other things:

• Complete benchmarking for building energy use;
• Adopt an Energy Management Plan per building;
• Implement an operations and maintenance (“O&M”) program;
• Designate an Energy Manager for each building;
• Meet performance standard or Energy Use Intensity (“EUI”) Target based on building type.

Compliance dates begin in June 2026 for the largest buildings, with smaller buildings being phased in over the following two years.  If building owners fail to submit documentation demonstrating compliance with the Act, Commerce is authorized to impose an administrative penalty upon the building owner, which can be up to $5,000, plus additional amounts for continued violations not to exceed a daily amount of $1 per year per gross square foot of floor area.[2]

Considerations for Ports.

• Port-Owned Covered Buildings. The Act may impact both port-owned and occupied buildings, such as the port offices or terminal facilities and buildings that ports lease.  If your port has a Covered Building, you should have received a notification letter from Commerce.
• Get help. There are energy consultant services available to help ports and their tenants navigate these new regulations and conduct energy audits.  Commerce also has resources on their webpage – https://www.commerce.wa.gov/cbps/cbps-support/.

• Port Leasing. Importantly in the leasing regard, the Act makes the Building Owner responsible for compliance and liable for violations.  That means a port could be on the hook for one of their tenant’s actions or inactions.  Ports should review leases for their Covered Buildings under the Act and take care to update those leases as needed to address landlord and tenant responsibilities concerning BPS.  Your port leases may already include a boilerplate provision that requires tenants to “comply with all laws and regulations” perhaps it also includes an indemnification provision making tenants responsible for paying fines and administrative penalties assessed on the leasehold building.  Even with these basic provisions, you may find benefit in updating your port lease to address specific aspects of the Act and BPS, especially for example, in buildings with multiple tenants where your port cannot easily allocate compliance responsibilities or penalties amongst the tenants.
• Buildings on Port Land Leases. The Act only applies to a Building Owner – so if your port has a land lease and your tenant owns the building on port land, that tenant is responsible for compliance with BPS.[3]
• Outreach to Tenants. Whether for tenants in port owned buildings or land lease tenants, your port may be in a good position to conduct tenant outreach to educate them on BPS and the requirements of the Act.  Consider connecting tenants to resources or hosting an educational seminar.

• Financial Assistance. Commerce has financial incentives to encourage energy efficiency improvements – learn more about these incentives at: https://www.commerce.wa.gov/cbps/cbps-performance-grants/
• Cities BPS. Cities can adopt more restrictive BPS than the state.  To date, only Seattle has done so in Washington, but others may follow-suit and your port may want to have a seat at the table for those discussions.
• Changing Regulations and Interpretation. The Act and BPS are new regulations in Washington, and still a relatively new concept around the nation.  The few jurisdictions that have imposed these regulations have done so only in the last 5 to 7 years.  As a result, there is little experience with these regulations and scant court cases or administrative decisions to provide guidance on implementation and enforcement.  As with any new regulatory framework, there are open questions about the Act and how the BPS will be implemented in Washington.  Your port may want to identify a point person on staff to stay on top of these regulations and keep the port leadership informed of any changes in regulations as it is implemented in the next few years.

As always, please contact your port counsel with questions regarding this topic.  And, if you have a question for Knowing the Waters, please e-mail me at tschermetzler@csdlaw.com.

[1] The Act applies to “Covered Buildings” which is defined as a building where the sum of nonresidential, hotel, motel, and dormitory floor areas exceed 50,000 gross square feet, excluding the parking garage area (Tier 1) or building where the sum of multifamily residential, nonresidential, hotel, motel, and dormitory floor areas exceeds 20,000 gross square feet, but does not exceed 50,000 gross square feet, excluding the parking garage area (Tier 2).

[2] RCW 19.27A.210(10).

[3] RCW 19.27A.200(3)(b).