CECW-CE APR O 5 2019...otherwise require independent peer review to be excluded from independent peer review under certain circumstances. Requests for exclusions will be decided by

DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS

441 G STREET, NW WASHINGTON, DC 20314-1000

CECW-CE APR O 5 2019

MEMORANDUM FOR MAJOR SUBORDINATE COMMANDS AND DISTRICT COMMANDERS

SUBJECT: Interim Guidance on Streamlining Independent External Peer Review (IEPR) for Improved Civil Works Product Delivery

1. References.

a. Engineer Circular (EC) 1165-2-217, dated 20 February 2018, Review Policy for Civil Works.

b. DPM 2018-02, Clarification of Policies on Review Plan (RP) Approvals, Type II IEPR Decision, and Regional Programmatic Value Engineering Studies, 13 April 2018.

c. Chief's Memorandum, Delegation of Authority in Section 2034(a)(5)(A) of the Water Resources Development Act of 2007 (WRDA 2007), as amended (33 U.S.C. § 2343), 18 January 2018.

d. Chief's Memorandum, Revised Delegation of Authority in Section 2034(a)(5)(A) of WRDA 2007, as amended (33 U.S.C. § 2343), 23 May 2018.

e. DCW Memorandum, Revised Delegation of Authority in Section 2034(a)(5)(A) of WRDA 2007, as amended (33 U.S.C. § 2343), 07 June 2018.

2. When the statutory requirements for IEPR were first introduced in the WRDA 2007, the U.S. Army Corps of Engineers (USAGE) adopted a broad application of these reviews. In the nearly 12 years since, USAGE improved its quality management and strengthened all layers of review. For example, USAGE now requires more rigor in District Quality Control (DQC) and the use of Community of Practice approved reviewers for Agency Technical Review (ATR). IEPR remains an important aspect of USACE's overall quality management strategy for producing sound federal investment decisions and projects. In a resources constrained environment, USAGE must focus its IEPR implementation on the most complex, highest cost projects, as well as those that pose a high risk to public safety, the economy, and the environment. This memorandum summarizes the current guidance on delegated authorities to the field, and updated guidance on IEPR mandatory triggers.

3. IEPR is the most independent level of review, and is applied in cases that meet certain criteria where the risk and magnitude of the proposed project are such that a

CECW-CE SUBJECT: Interim Guidance on Streamlining Independent External Peer Review for Improved Civil Works Product Delivery

critical examination by a qualified team outside of USAGE is warranted. Risk-informed decision making is used to determine the need for reviews, and when conducted, the reviews and the number of reviewers should be scalable to the risk and uncertainty for the project. Any work product, report, evaluation, or assessment that undergoes DQC and ATR may also be required to undergo an IEPR under certain circumstances. For clarity, IEPR is divided into two types: Type I IEPR for decision documents and Type II IEPR for implementation documents. From the date of this memorandum, IEPR will be streamlined as described in the following paragraphs. The content of this memorandum will be incorporated into a future Engineer Regulation.

4. The requirement for a Type I IEPR is based upon Section 2034 of WRDA 2007 and Section 1044 of the Water Resources Reform and Development Act of 2014, Section 1141 of WRDA 2018, the Office of Management and Budget Peer Review Bulletin, and other USAGE policy considerations. The current guidance in EC 1165-2-217 regarding mandatory triggers for Type I IEPR includes conditions beyond the statutory requirements. This memorandum streamlines the mandatory triggers to reflect only the statutory requirements for Type I IEPR. Effective immediately, the three mandatory conditions determining whether Type I IEPR is undertaken are as follows:

a. When the estimated total cost of the project, including mitigation costs, is greater than $200 million.

b. When the Governor of an affected state requests a peer review by independent experts.

c. When the Chief of Engineers determines the project study is controversial due to significant public dispute over the size, nature, or effects of the project or the economic or environmental costs or benefits of the project (including but not limited to projects requiring an environmental impact statement (EIS)).

5. When none of the three mandatory triggers for IEPR are met, Major Subordinate Command (MSC) Commanders have the discretion to conduct IEPR based on a riskinformed assessment of the expected contribution of IEPR to the project. Furthermore, Section 2034 sets forth requirements for a specific condition where IEPR is discretionary. Type I IEPR is discretionary with special requirements when the head of a federal or state agency charged with reviewing the project study determines that the project is likely to have a significant adverse impact on environmental, cultural, or other resources under the jurisdiction of the agency after implementation of proposed mitigation plans and he/she requests a Type I IEPR. The special requirements include a deadline for decision making, a public disclosure of a decision not to conduct the

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requested IEPR, and an appeals process afforded to the head of the agency. Guidance for this condition:

a. A decision whether to conduct Type I IEPR must be made within 21 days of the date of receipt of the request by the head of the federal or state agency.

b. If the MSC Commander decides not to conduct a Type I IEPR following such a request, the Chief of Engineers will make publicly available the reasons for not conducting the Type I IEPR. The decision will be documented in the project's RP, which must be posted to the district's website.

c. If the MSC Commander, decides not to conduct a Type I IEPR after such a request, the head of the federal or state agency may appeal the decision to the Chairman of the Council on Environmental Quality within 30 days of the decision. The Chairman will decide the appeal within 30 days of the date of the appeal.

6. Section 2034 of WRDA 2007, as amended, permits project studies that would otherwise require independent peer review to be excluded from independent peer review under certain circumstances. Requests for exclusions will be decided by the MSC, as delegated by the Chief of Engineers. A project study may be excluded from Type I IEPR if any of the following three sets of conditions apply:

a. If the project study does not include an EIS and is a project subject to peer review as described in paragraph 4a. above (costs greater than $200M) and the Chief of Engineers determines that it:

(1) is not controversial;

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

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

(4) 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; or

b. If the project study:

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(1) 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; or

(2) is for an activity for which there is ample experience within USAGE and the industry to treat the activity as being routine; and

(3) has minimal life safety risk; or

c. If the project study does not include an EIS and is being conducted under the USAGE Continuing Authorities Program.

7. If none of the legally-required mandatory triggers set forth in paragraph 4 above are met, the MSC Commander will determine whether Type I IEPR is required when approving the project study's Review Management Organization (RMO) endorsed RP. An additional action to exclude such a study from IEPR is not necessary and the RP must fully document the risk-informed decision making regarding the appropriate levels · of review.

8. Section 2035 of WRDA 2007 has expired. However, USAGE continues to stress the importance of Type II IEPR, also known as Safety Assurance Review (SAR), on high risk design and construction activities. The District Chief of Engineering , as the responsible engineer in charge, will make a risk-informed decision whether the project would benefit from a SAR and document the rationale to conduct or not conduct a SAR in the RP. This decision will consider a variety of factors such as a significant threat to human life, use of innovative materials or techniques and if the engineering is based on novel methods, presents complex challenges for interpretations, contains precedentsetting methods or models, or presents conclusions that are likely to change prevailing practices. Tolerable Risk Guidelines (TRG) may be used as the principle to judge if there is a significant threat to human life. If there is not a completed assessment with TRG , other rigorous analysis of incremental risk may be used. This action applies to new projects and to the major repair, rehabilitation , replacement, or modification of existing facilities.

9. The RMO for flood risk management projects with a SAR is the Risk Management Center. For other non-flood risk management projects with a SAR, the RMO is the MSC. When the MSC approves the RP in which the District Chief of Engineering determines that a SAR does not need to be conducted , the RMO reverts to the MSC for the project.

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10. Reviews should be scalable to the project risk. For example, higher risk projects will need more reviews; while lower risk projects may only need one review by a SAR panel during design. Additionally, the number of reviewers and disciplines should also reflect the level of risk. The SAR panel selection is described in EC 1165-2-217. Note, as a strategic level review, not all documents will be evaluated or reviewed in their entirety. Reviewers should be looking at the portions of the project that are driving the life safety risks or areas of technical complexity of the project.

11 . Panel reviewers should consider the charge questions and the adequacy and acceptability of the engineering, models, and analyses used. The comments may include observations beyond the scope of the "charge" to bring important issues to the attention of decision makers. All panel comments should use the four-part comment structure that is required for ATR comments.

12. Projects that utilize Design-Build (D-B) contracts will generally follow the SAR process. Districts that are considering using a D-B contract will require additional guidance from the appropriate RMO. The RP will document the process to incorporate SAR into the D-B contract.

13. The Federal Advisory Committee Act is applicable to a SAR. To ensure this act is not violated, the SAR panel should set the agenda, control the meetings, and will not provide a consensus report.

14. It is acceptable to compile all reviewers' comments and assessments into one report, as long as they are not consensus views for the group.

15. Any questions on this policy should be directed to the appropriate RMO for your planning or implementation phase products.

~~' =-JAMES C. DAL TON, P.E. Director of Civil Works

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CECW-CE APR O 5 2019...otherwise require independent peer review to be excluded from independent peer review under certain circumstances. Requests for exclusions will be decided by

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