33 USC 2343 - Independent peer review

U.S Code last checked for updates: May 02, 2024

§ 2343.

Independent peer review

(a)

Project studies subject to independent peer review

(1)

In general

(2)

Scope

(3)

Project studies subject to peer review

(A)

Mandatory

A project study shall be subject to peer review under paragraph (1) if—

(i)

the project has an estimated total cost of more than $200,000,000, including mitigation costs, and is not determined by the Chief of Engineers to be exempt from peer review under paragraph (6);

(ii)

the Governor of an affected State requests a peer review by an independent panel of experts; or

(iii)

the Chief of Engineers determines that the project study is controversial considering the factors set forth in paragraph (4).

(B)

Discretionary

(i)

Agency request

(ii)

Deadline for decision

(iii)

Reasons for not conducting peer review

(iv)

Appeal to Chairman of Council on Environmental Quality

(4)

Factors to consider

In determining whether a project study is controversial under paragraph (3)(A)(iii), the Chief of Engineers shall consider if—

(A)

there is a significant public dispute as to the size, nature, or effects of the project; or

(B)

there is a significant public dispute as to the economic or environmental costs or benefits of the project.

(5)

Project studies excluded from peer review

The Chief of Engineers may exclude a project study from peer review under paragraph (1)—

(A)

if the project study does not include an environmental impact statement and is a project study subject to peer review under paragraph (3)(A)(i) that the Chief of Engineers determines—

(i)

is not controversial;

(ii)

has no more than negligible adverse impacts on scarce or unique cultural, historic, or tribal resources;

(iii)

has no substantial adverse impacts on fish and wildlife species and their habitat prior to the implementation of mitigation measures; and

(iv)

has, before implementation of mitigation measures, no more than a negligible adverse impact on a species listed as endangered or threatened species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or the critical habitat of such species designated under such Act;

(B)

if the project study—

(i)

involves only the rehabilitation or replacement of existing hydropower turbines, lock structures, or flood control gates within the same footprint and for the same purpose as an existing water resources project;

(ii)

is for an activity for which there is ample experience within the Corps of Engineers and industry to treat the activity as being routine; and

(iii)

has minimal life safety risk; or

(C)

if the project study does not include an environmental impact statement and is a project study pursued under section 701s of this title, section 701g of this title, section 701r of this title, section 577(a) of this title, section 426g of this title, section 426i of this title, section 603a of this title, section 2309a of this title, or section 2330 of this title.

(6)

Determination of total cost

(b)

Timing of peer review

(1)

In general

(2)

Factors to consider

In any case in which the Chief of Engineers has not initiated a peer review of a project study, the Chief of Engineers shall consider, at a minimum, whether to initiate a peer review at the time that—

(A)

the without-project conditions are identified;

(B)

the array of alternatives to be considered are identified; and

(C)

the preferred alternative is identified.

(3)

Reasons for timing

If the Chief of Engineers does not initiate a peer review for a project study at a time described in paragraph (2), the Chief shall—

(A)

not later than 7 days after the date on which the Chief of Engineers determines not to initiate a peer review—

(i)

notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of that decision; and

(ii)

make publicly available, including on the Internet, the reasons for not conducting the review; and

(B)

include the reasons for not conducting the review in the decision document for the project study.

(4)

Limitation on multiple peer review

(c)

Establishment of panels

(1)

In general

(2)

Membership

(3)

Limitation on appointments

(4)

Congressional and public notification

Following the identification of a project study for peer review under this section, but prior to initiation of the review by the panel of experts, the Chief of Engineers shall, not later than 7 days after the date on which the Chief of Engineers determines to conduct a review—

(A)

notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of the review conducted under this section; and

(B)

make publicly available, including on the Internet, information on—

(i)

the dates scheduled for beginning and ending the review;

(ii)

the entity that has the contract for the review; and

(iii)

the names and qualifications of the panel of experts.

(d)

Duties of panels

A panel of experts established for a peer review for a project study under this section shall—

(1)

conduct the peer review for the project study;

(2)

assess the adequacy and acceptability of the economic, engineering, and environmental methods, models, and analyses used by the Chief of Engineers;

(3)

receive from the Chief of Engineers the public written and oral comments provided to the Chief of Engineers;

(4)

provide timely written and oral comments to the Chief of Engineers throughout the development of the project study, as requested; and

(5)

submit to the Chief of Engineers a final report containing the panel’s economic, engineering, and environmental analysis of the project study, including the panel’s assessment of the adequacy and acceptability of the economic, engineering, and environmental methods, models, and analyses used by the Chief of Engineers, to accompany the publication of the report of the Chief of Engineers for the project.

(e)

Duration of project study peer reviews

(1)

Deadline

A panel of experts established under this section shall—

(A)

complete its peer review under this section for a project study and submit a report to the Chief of Engineers under subsection (d)(5) not more than 60 days after the last day of the public comment period for the draft project study, or, if the Chief of Engineers determines that a longer period of time is necessary, such period of time determined necessary by the Chief of Engineers; and

(B)

terminate on the date of initiation of the State and agency review required by section 701–1 of this title.

(2)

Failure to meet deadline

(f)

Recommendations of panel

(1)

Consideration by the Chief of Engineers

(2)

Public availability and submission to Congress

After receiving a report on a project study from a panel of experts under this section, the Chief of Engineers shall make available to the public, including on the Internet, and submit to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives—

(A)

a copy of the report not later than 7 days after the date on which the report is delivered to the Chief of Engineers; and

(B)

a copy of any written response of the Chief of Engineers on recommendations contained in the report not later than 3 days after the date on which the response is delivered to the Chief of Engineers.

(3)

Inclusion in project study

(g)

Costs

(1)

In general

The costs of a panel of experts established for a peer review under this section—

(A)

shall be a Federal expense; and

(B)

shall not exceed $500,000.

(2)

Waiver

(h)

Applicability

This section shall apply to—

(1)

project studies initiated during the 2-year period preceding November 8, 2007, and for which the array of alternatives to be considered has not been identified; and

(2)

project studies initiated during the period beginning on November 8, 2007, and ending 17 years after November 8, 2007.

(i)

Reports

(1)

Initial report

(2)

Additional report

(j)

Nonapplicability of chapter 10 of title 5

(k)

Savings clause

(l)

Definitions

In this section, the following definitions apply:

(1)

Project study

The term “project study” means—

(A)

a feasibility study or reevaluation study for a water resources project, including the environmental impact statement prepared for the study; and

(B)

any other study associated with a modification of a water resources project that includes an environmental impact statement, including the environmental impact statement prepared for the study.

(2)

Affected State

(3)

Eligible organization

The term “eligible organization” means an organization that—

(A)

is described in section 501(c)(3), and exempt from Federal tax under section 501(a), of title 26;

(B)

is independent;

(C)

is free from conflicts of interest;

(D)

does not carry out or advocate for or against Federal water resources projects; and

(E)

has experience in establishing and administering peer review panels.

(4)

Total cost

(Pub. L. 110–114, title II, § 2034, Nov. 8, 2007, 121 Stat. 1086; Pub. L. 113–121, title I, § 1044, June 10, 2014, 128 Stat. 1250; Pub. L. 115–270, title I, § 1141, Oct. 23, 2018, 132 Stat. 3785; Pub. L. 117–286, § 4(a)(203), Dec. 27, 2022, 136 Stat. 4328.)

cite as: 33 USC 2343