MURIEL BOWSER
MAYOR
June 29, 2023
The Honorable Phil Mendelson
Chairman
Council
of the District of Columbia
John
A. Wilson Building
1350 Pennsylvania Avenue, NW, Suite 504
Washington, DC 20004
Dear Chairman Mendelson:
Enclosed for consideration and enactment by the Council
of the District of Columbia are the
"Floodplain Review Authority Amendment Act
of 2023," the "Floodplain Review Authority
Temporary Amendment Act
of2023," and the "Floodplain Review Authority Emergency
Amendment Act
of2023," along with an accompanying emergency declaration resolution.
The legislation would repeal section 6B
of the District of Columbia Applications Insurance
Implementation Act, effective April
5, 2021 (D.C. Law 23-269; D.C. Official Code§ 6-507), to
allow the Mayor to continue to delegate the functions
of that act to the Director of the
Department
of Energy and Environment ("DOEE"). DOEE has historically exercised the
authority
of the Applications Insurance Act to implement regulations relating to flood hazards
and safety in the District, and DOEE has been identified by the Mayor as the District
coordination agency for the National Flood Insurance Program ("NFIP"), as required by the
Federal Emergency Management Agency. Repeal
of section 6B will ensure that the District
continues to maintain, and thus obtain the benefits of, its membership in the NFIP.
I urge the Council to take prompt and favorable action on the enclosed legislation. 1
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1/t:e.~
at the request of the Mayor
A
PROPOSED RESOLUTION
IN THE COUNCIL OF THE DISTRICT OF COLUMBIA
To declare the existence of an emergency with respect to the need to amend the District of
Columbia Applications Insurance Implementation Act to repeal the direction to the
Mayor that the functions
of the act be delegated to the Director of the Department of
Buildings.
RESOLVED, BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this
resolution
may be cited as the "Floodplain Review Authority Emergency Declaration Resolution
of 2023".
Sec. 2. (a) Section
50l(b) of the Department of Buildings Establishment Act of 2020,
effective April 5, 2021 (D.C.
Law 23-269;68 DCR 1490), amended the District of Columbia
Applications Insurance Implementation Act, effective May 26, 1976 (D.C. Law 1-64; D.C.
Official
Code§ 6-501 et seq.) ("Applications Insurance Act") by adding a new section 6B (D.C.
Official Code § 6-507) that directs the
Mayor to delegate the functions in the Applications
Insurance
Act to the Director of the Department of Buildings.
(b) The purpose
of the Applications Insurance Act is to implement certain elements of a
flood protection program for the District, to ensure that the District meets the federal
requirements for membership in the National Flood Insurance Program ("NFIP").
( c) Since 1996, the functions in the Applications Insurance Act have been delegated by
the Mayor to the Department
of Energy and Environment and its predecessor agencies. The
1 33 Department of Energy and Environment is currently funded and staffed to administer the
34 Applications Insurance Act.
35 (d) While the Department
of Buildings regulates the construction of buildings through the
36 Construction Codes, which include flood elevation requirements, the Department
of Energy and
37 Environment regulates site and building development in floodplains more broadly, and
38 specifically in accordance with the regulations and guidance
of the Federal Emergency
39 Management Agency ("FEMA").
40 (e) The District's membership in the NFIP provides benefits to the District that include
41 guaranteed annual grants of $120,000 and more to support floodplain management, access to
42 affordable flood insurance for District residents through the NFIP, and federal disaster relief
43 should a flood occur in the District.
44 (f) The Department
of Energy and Environment has historically, pursuant to Mayor's
45 Orders, exercised the authority of the Applications Insurance Act to implement regulations
46 relating to flood hazards and safety in the District, and has been identified by the Mayor as the
47 District coordination agency for the NFIP, as required by FEMA, by designating the Director
of
48 the Department of Energy and Environment as the Floodplain Administrator for the District,
49 responsible for interacting with
FEMA on the development of flood maps and implementation of
50 FEMA guidelines related to flood hazards and safety.
51 (g) Emergency legislation is necessary to repeal section 6B of the Applications Insurance
52 Act (D.C. Official Code § 6-507), thereby clarifying that the Mayor may continue delegating the
53 functions of the Applications Insurance Act to the Director of the Department of Energy and
54 Environment. This will ensure that the District continues to maintain, and thus obtain the
55 benefits of, its membership in the NFIP.
2 56 Sec. 3. The Council of the District of Columbia determines that the circumstances
57 enumerated in section 2 constitute emergency circumstances making it necessary that the
58 Floodplain Review Authority Emergency Amendment Act of 2023 be adopted after a single
59 reading.
60 Sec. 4. This resolution shall take effect immediately.
3 GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL
BRIAN L. SCHWALB
ATTORNEY GENERAL
LEGAL COUNSEL DIVISION
MEMORANDUM
TO: Dan Emerine
Legislative Director
***
Department of Energy and Environment
FROM: Megan D. Browder MD8
Deputy Attorney General
Legal Counsel Division
DATE: June 27, 2023
PRIVILEGED AND CONFIDENTIAL
ATTORNEY-CLIENT COMMUNICATION
SUBJECT: Legal Sufficiency Review -Draft "Floodplain Review Authority Emergency
Amendment Act
of 2023," "Floodplain Review Authority Temporary Amendment
Act
of 2023," "Floodplain Review Authority Emergency Declaration Resolution of
2023," and "Floodplain Review Authority Amendment Act of 2023"
(AE-23-423 B)
This legislation would repeal a recent addition to the District of Columbia Applications Insurance
Implementation Act ("Insurance Act").
1
That act requires the review of building permit applications,
subdivision proposals, sewage systems, and more for potential flood hazards.
2
The Mayor has delegated
administration
of the Insurance Act to your Department,
3
but the Council recently directed the Mayor to
move that delegation to the new Department ofBuildings.
4
This legislation would repeal that direction. It
is legally sufficient.
5
If you have any questions regarding this memorandum, please contact Joshua Turner, Assistant Attorney
General, Legal Counsel Division, at (202) 442-9834, or me at (202) 724-5524.
MDB/jat
1
Effective May 26, 1976 (D.C. Law 1-64; D.C. Official Code § 6-50 I et seq.).
2
See D.C. Official Code§§ 6-501-6-504.
3
See, e.g., Mayor's Order 2007-61, dated June 14, 2006.
4
Department of Buildings Establishment Act of 2020, § 50l(b), effective Apr. 5, 2021 (D .C. Law 23-269; 68 DCR 4174).
5
The repeal of this direction would also make it unnecessary for us to resolve whether that direction impermissibly abridged
the Mayor's delegation authority under the Charter.
See D.C. Official Code§ 1-204.22(6) (authori zing the Mayor to delegate
her functions
to "any director of an executive department").
1350 Pennsylvania Avenue, N.W., Suite 409, Washington, D.
C. 20004 Phone (202) 724-5524 Email: megan.browder@dc.gov GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL
BRIAN L. SCHWALB
ATTORNEY GENERAL
LEGAL COUNSEL DIVISION
MEMORANDUM
TO: Tommy Wells
Director
***
Office of Policy and Legislative Affairs
FROM: Megan D. Browder
Deputy Attorney General
Legal Counsel Division
DATE: June 27, 2023
PRIVILEGED AND CONFIDENTIAL
ATTORNEY-CLIENT COMMUNICATION
SUBJECT: Legal Sufficiency Review - Draft "Floodplain Review Authority Emergency
Amendment Act of 2023," "Floodplain Review Authority Temporary Amendment
Act of 2023," "Floodplain Review Authority Emergency Declaration Resolution of
2023," and "Floodplain Review Authority Amendment Act of 2023"
(AE-23-423 B)
This is to Certify that this Office has reviewed the above-referenced draft
legislation and found it to be legally sufficient. If you have any questions in this regard, please do
not hesitate to call me at (202) 724-5524.
Megan D. Browder
2