33 U.S.C. § 2343 — Independent peer review

Page 844 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2342 (A) a rural community; or (B) an economically disadvantaged com- munity, including an economically dis- advantaged minority community; (3) the amount of appropriations a project has received; (4) the funding capability of the Corps of En- gineers with respect to the project; (5) whether the project could be carried out under other Federal authorities at an equiva- lent cost to the non-Federal interest; and (6) any other criteria that the Secretary con- siders to be appropriate. (c) Inclusion in guidance The Secretary shall include the criteria devel- oped under subsection (a) in the annual Civil Works Direct Program Development Policy Guidance of the Secretary. (d) Report to Congress For fiscal year 2022, and biennially thereafter, in conjunction with the President’s annual budget submission to Congress under section 1105(a) of title 31, the Secretary shall submit to the Committee on Environment and Public Works and the Committee on Appropriations of the Senate and the Committee on Transpor- tation and Infrastructure and the Committee on Appropriations of the House of Representatives a report that identifies the Secretary’s ranking of individual environmental assistance projects authorized by Congress for the Secretary to carry out, in accordance with the criteria devel- oped under this section. (Pub. L. 116–260, div. AA, title I, § 137, Dec. 27, 2020, 134 Stat. 2650.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Development Act of 2020, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 2 of div. AA of Pub. L. 116–260, set out as a note under section 2201 of this title. DEFINITIONS For definition of ‘‘economically disadvantaged com- munity’’ as used in this section, see section 160 of div. AA of Pub. L. 116–260, set out as a note under section 2201 of this title. § 2342. Access to water resource data (a) In general Using available funds, the Secretary shall make publicly available, including on the Inter- net, all data in the custody of the Corps of Engi- neers on— (1) the planning, design, construction, oper- ation, and maintenance of water resources de- velopment projects; and (2) water quality and water management of projects owned, operated, or managed by the Corps of Engineers. (b) Limitation Nothing in this section may be construed to compel or authorize the disclosure of data or other information determined by the Secretary to be confidential information, privileged infor- mation, law enforcement information, national security information, infrastructure security in- formation, personal information, or information the disclosure of which is otherwise prohibited by law. (c) Timing The Secretary shall ensure that data is made publicly available under subsection (a) as quick- ly as practicable after the data is generated by the Corps of Engineers. (d) Partnerships In carrying out this section, the Secretary may develop partnerships, including through co- operative agreements, with State, tribal, and local governments and other Federal agencies. (Pub. L. 110–114, title II, § 2017, Nov. 8, 2007, 121 Stat. 1077; Pub. L. 114–322, title I, § 1135, Dec. 16, 2016, 130 Stat. 1656.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. AMENDMENTS 2016—Pub. L. 114–322 amended section generally. Prior to amendment, section related to access to water re- source data. Statutory Notes and Related Subsidiaries DATA TRANSPARENCY Pub. L. 116–260, div. AA, title I, § 158(b), Dec. 27, 2020, 134 Stat. 2662, provided that: ‘‘The Secretary [of the Army] shall prioritize making publicly available water resources data in the custody of the Corps of Engineers, as authorized by section 2017 of the Water Resources Development Act of 2007 (33 U.S.C. 2342).’’ ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 2 of Pub. L. 110–114, set out as a note under section 2201 of this title. § 2343. Independent peer review (a) Project studies subject to independent peer review (1) In general Project studies shall be subject to a peer re- view by an independent panel of experts as de- termined under this section. (2) Scope The peer review may include a review of the economic and environmental assumptions and projections, project evaluation data, economic analyses, environmental analyses, engineering analyses, formulation of alternative plans, methods for integrating risk and uncertainty, models used in evaluation of economic or envi- ronmental impacts of proposed projects, and any biological opinions of the project study. Page 845 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2343 (3) Project studies subject to peer review (A) Mandatory A project study shall be subject to peer re- view 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 re- quests a peer review by an independent panel of experts; or (iii) the Chief of Engineers determines that the project study is controversial con- sidering the factors set forth in paragraph (4). (B) Discretionary (i) Agency request A project study shall be considered by the Chief of Engineers for peer review under this section if the head of a Federal or State agency charged with reviewing the project study determines that the project is likely to have a significant ad- verse impact on environmental, cultural, or other resources under the jurisdiction of the agency after implementation of pro- posed mitigation plans and requests a peer review by an independent panel of experts. (ii) Deadline for decision A decision of the Chief of Engineers under this subparagraph whether to con- duct a peer review shall be made within 21 days of the date of receipt of the request by the head of the Federal or State agency under clause (i). (iii) Reasons for not conducting peer re- view If the Chief of Engineers decides not to conduct a peer review following a request under clause (i), the Chief shall make pub- licly available, including on the Internet, the reasons for not conducting the peer re- view. (iv) Appeal to Chairman of Council on En- vironmental Quality A decision by the Chief of Engineers not to conduct a peer review following a re- quest under clause (i) shall be subject to appeal by a person referred to in clause (i) to the Chairman of the Council on Envi- ronmental Quality if such appeal is made within the 30-day period following the date of the decision being made available under clause (iii). A decision of the Chairman on an appeal under this clause shall be made within 30 days of the date of the appeal. (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 para- graph (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 Engi- neers determines— (i) is not controversial; (ii) has no more than negligible adverse impacts on scarce or unique cultural, his- toric, or tribal resources; (iii) has no substantial adverse impacts on fish and wildlife species and their habi- tat prior to the implementation of mitiga- tion measures; and (iv) has, before implementation of miti- gation measures, no more than a neg- ligible 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 re- placement of existing hydropower tur- bines, lock structures, or flood control gates within the same footprint and for the same purpose as an existing water re- sources project; (ii) is for an activity for which there is ample experience within the Corps of Engi- neers 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 For purposes of determining the estimated total cost of a project under paragraph (3)(A), the total cost shall be based upon the reason- able estimates of the Chief of Engineers at the completion of the reconnaissance study for the project. If the reasonable estimate of total costs is subsequently determined to be in ex- cess of the amount in paragraph (3)(A), the Chief of Engineers shall make a determination whether a project study is required to be re- viewed under this section. (b) Timing of peer review (1) In general The Chief of Engineers shall determine the timing of a peer review of a project study under subsection (a). In all cases, the peer re- view shall occur during the period beginning on the date of the signing of the feasibility cost-sharing agreement for the study and end- ing on the date established under subsection (e)(1)(A) for the peer review and shall be ac- complished concurrent with the conducting of the project study. Page 846 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2343 (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 consid- ered 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 de- scribed 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 Environ- ment and Public Works of the Senate and the Committee on Transportation and In- frastructure of the House of Representa- tives of that decision; and (ii) make publicly available, including on the Internet, the reasons for not con- ducting 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 Nothing in this subsection shall be con- strued to require the Chief of Engineers to conduct multiple peer reviews for a project study. (c) Establishment of panels (1) In general For each project study subject to peer re- view under subsection (a), as soon as prac- ticable after the Chief of Engineers determines that a project study will be subject to peer re- view, the Chief of Engineers shall contract with the National Academy of Sciences or a similar independent scientific and technical advisory organization or an eligible organiza- tion to establish a panel of experts to conduct a peer review for the project study. (2) Membership A panel of experts established for a project study under this section shall be composed of independent experts who represent a balance of areas of expertise suitable for the review being conducted. (3) Limitation on appointments The National Academy of Sciences or any other organization the Chief of Engineers con- tracts with under paragraph (1) to establish a panel of experts shall apply the National Academy of Science’s policy for selecting com- mittee members to ensure that members se- lected for the panel of experts have no conflict with the project being reviewed. (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 re- view— (A) notify the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infra- structure 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 re- view 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 com- ments to the Chief of Engineers throughout the development of the project study, as re- quested; and (5) submit to the Chief of Engineers a final report containing the panel’s economic, engi- neering, and environmental analysis of the project study, including the panel’s assess- ment of the adequacy and acceptability of the economic, engineering, and environmental methods, models, and analyses used by the Chief of Engineers, to accompany the publica- tion 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 re- port to the Chief of Engineers under sub- section (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 deter- mined necessary by the Chief of Engineers; and (B) terminate on the date of initiation of the State and agency review required by sec- tion 701–1 of this title. (2) Failure to meet deadline If a panel of experts does not complete its peer review of a project study under this sec- tion and submit a report to the Chief of Engi- neers under subsection (d)(5) on or before the deadline established by paragraph (1) for the peer review, the Chief of Engineers shall com- plete the project study without delay. Page 847 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2343 (f) Recommendations of panel (1) Consideration by the Chief of Engineers After receiving a report on a project study from a panel of experts under this section and before entering a final record of decision for the project, the Chief of Engineers shall con- sider any recommendations contained in the report and prepare a written response for any recommendations adopted or not adopted. (2) Public availability and submission to Con- gress 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 de- livered to the Chief of Engineers; and (B) a copy of any written response of the Chief of Engineers on recommendations con- tained in the report not later than 3 days after the date on which the response is deliv- ered to the Chief of Engineers. (3) Inclusion in project study A report on a project study from a panel of experts under this section and the written re- sponse of the Chief of Engineers shall be in- cluded in the final decision document for the 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 The Chief of Engineers may waive the $500,000 limitation contained in paragraph (1)(B) in cases that the Chief of Engineers de- termines appropriate. (h) Reports (1) Initial report Not later than 3 years after November 8, 2007, the Chief of Engineers shall submit to the Committee on Environment and Public Works of the Senate and the Committee on Transpor- tation and Infrastructure of the House of Rep- resentatives a report on the implementation of this section. (2) Additional report Not later than 6 years after November 8, 2007, the Chief of Engineers shall update the report under paragraph (1) taking into account any further information on implementation of this section and submit such updated report to the Committee on Environment and Public Works of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives. (i) Nonapplicability of chapter 10 of title 5 Chapter 10 of title 5 shall not apply to a peer review panel established under this section. (j) Savings clause Nothing in this section shall be construed to affect any authority of the Chief of Engineers to cause or conduct a peer review of a water re- sources project existing on November 8, 2007. (k) 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, includ- ing 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 im- pact statement prepared for the study. (2) Affected State The term ‘‘affected State’’, as used with re- spect to a water resources project, means a State all or a portion of which is within the drainage basin in which the project is or would be located and would be economically or envi- ronmentally affected as a consequence of the project. (3) Eligible organization The term ‘‘eligible organization’’ means an organization that— (A) is described in section 501(c)(3), and ex- empt 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 ad- ministering peer review panels. (4) Total cost The term ‘‘total cost’’, as used with respect to a water resources project, means the cost of construction (including planning and design- ing) of the project. In the case of a project for hurricane and storm damage reduction or flood damage reduction that includes periodic nourishment over the life of the project, the term includes the total cost of the nourish- ment. (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; Pub. L. 118–272, div. A, title I, § 1122, Jan. 4, 2025, 138 Stat. 3015.) Editorial Notes REFERENCES IN TEXT The Endangered Species Act of 1973, referred to in subsec. (a)(5)(A)(iv), is Pub. L. 93–205, Dec. 28, 1973, 87 Stat. 884, which is classified principally to chapter 35 (§ 1531 et seq.) of Title 16, Conservation. For complete classification of this Act to the Code, see Short Title note set out under section 1531 of Title 16 and Tables. CODIFICATION Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Page 848 TITLE 33—NAVIGATION AND NAVIGABLE WATERS § 2344 Resources Development Act of 1986 which comprises this chapter. AMENDMENTS 2025—Subsecs. (h) to (l). Pub. L. 118–272 redesignated subsecs. (i) to (l) as (h) to (k), respectively, and struck out former subsec. (h) which related to applicability of this section based on when project studies were initi- ated relative to Nov. 8, 2007. 2022—Subsec. (j). Pub. L. 117–286 substituted ‘‘chapter 10 of title 5’’ for ‘‘FACA’’ in heading and ‘‘Chapter 10 of title 5’’ for ‘‘The Federal Advisory Committee Act (5 U.S.C. App.)’’ in text. 2018—Subsec. (h)(2). Pub. L. 115–270 substituted ‘‘17 years’’ for ‘‘12 years’’. 2014—Subsec. (a)(3)(A)(i). Pub. L. 113–121, § 1044(a), substituted ‘‘$200,000,000’’ for ‘‘$45,000,000’’. Subsec. (b)(3), (4). Pub. L. 113–121, § 1044(b), added par. (3) and redesignated former par. (3) as (4). Subsec. (c)(4). Pub. L. 113–121, § 1044(c), added par. (4) and struck out former par. (4). Prior to amendment, text read as follows: ‘‘Upon identification of a project study for peer review under this section, but prior to initiation of the review, the Chief of Engineers shall notify the Committee on Environment and Public Works of the Senate and the Committee on Transpor- tation and Infrastructure of the House of Representa- tives of the review.’’ Subsec. (f)(2), (3). Pub. L. 113–121, § 1044(d), added pars. (2) and (3) and struck out former par. (2) which related to public availability and transmittal to Congress of a report on a project study from a panel of experts under this section. Subsec. (h)(2). Pub. L. 113–121, § 1044(e), substituted ‘‘12 years’’ for ‘‘7 years’’. § 2344. Safety assurance review (a) Projects subject to safety assurance review The Chief of Engineers shall ensure that the design and construction activities for hurricane and storm damage reduction and flood damage reduction projects are reviewed by independent experts under this section if the Chief of Engi- neers determines that a review by independent experts is necessary to assure public health, safety, and welfare. (b) Factors In determining whether a review of design and construction of a project is necessary under this section, the Chief of Engineers shall consider whether— (1) the failure of the project would pose a significant threat to human life; (2) the project involves the use of innovative materials or techniques; (3) the project design lacks redundancy; or (4) the project has a unique construction se- quencing or a reduced or overlapping design construction schedule. (c) Safety assurance review (1) Initiation of review At the appropriate point in the development of detailed engineering and design specifica- tions for each water resources project subject to review under this section, the Chief of Engi- neers shall initiate a safety assurance review by independent experts on the design and con- struction activities for the project. (2) Selection of reviewers A safety assurance review under this section shall include participation by experts selected by the Chief of Engineers from among individ- uals who are distinguished experts in engi- neering, hydrology, or other appropriate dis- ciplines. The Chief of Engineers shall apply the National Academy of Science’s policy for selecting reviewers to ensure that reviewers have no conflict of interest with the project being reviewed. (3) Compensation An individual serving as an independent re- viewer under this section shall be com- pensated at a rate of pay to be determined by the Secretary and shall be allowed travel ex- penses. (d) Scope of safety assurance reviews A safety assurance review under this section shall include a review of the design and con- struction activities prior to the initiation of physical construction and periodically there- after until construction activities are completed on a regular schedule sufficient to inform the Chief of Engineers on the adequacy, appropriate- ness, and acceptability of the design and con- struction activities for the purpose of assuring public health, safety, and welfare. The Chief of Engineers shall ensure that reviews under this section do not create any unnecessary delays in design and construction activities. (e) Safety assurance review record The written recommendations of a reviewer or panel of reviewers under this section and the re- sponses of the Chief of Engineers shall be avail- able to the public, including through electronic means on the Internet. (f) Applicability This section shall apply to any project in de- sign or under construction on November 8, 2007, and to any project with respect to which design or construction is initiated during the period be- ginning on November 8, 2007, and ending 7 years after November 8, 2007. (g) Nonapplicability of chapter 10 of title 5 Chapter 10 of title 5 shall not apply to a safety assurance review conducted under this section. (Pub. L. 110–114, title II, § 2035, Nov. 8, 2007, 121 Stat. 1091; Pub. L. 113–121, title III, § 3028, June 10, 2014, 128 Stat. 1305; Pub. L. 117–286, § 4(a)(204), Dec. 27, 2022, 136 Stat. 4328.) Editorial Notes CODIFICATION Section was enacted as part of the Water Resources Development Act of 2007, and not as part of the Water Resources Development Act of 1986 which comprises this chapter. AMENDMENTS 2022—Subsec. (g). Pub. L. 117–286 substituted ‘‘chapter 10 of title 5’’ for ‘‘FACA’’ in heading and ‘‘Chapter 10 of title 5’’ for ‘‘The Federal Advisory Committee Act (5 U.S.C. App.)’’ in text. 2014—Subsec. (g). Pub. L. 113–121 added subsec. (g). Statutory Notes and Related Subsidiaries ‘‘SECRETARY’’ DEFINED Secretary means the Secretary of the Army, see sec- tion 2 of Pub. L. 110–114, set out as a note under section 2201 of this title.