U.S. Army Corps of Engineers Finalizes 2026 Nationwide Permit Reissuance and Modifications

On January 8, 2026, the U.S. Army Corps of Engineers (Corps) published its final action reissuing and modifying Nationwide Permits (NWPs). This final action reissues 56 existing NWPs and issues one new NWP. The changes are modest, but include helpful clarifications for certain activities and businesses. They also include program-wide updates to certain general conditions and definitions, such as by adding “nature-based solutions,” and changes tied to recent litigation affecting certain NWPs. The new NWPs and associated conditions and definitions take effect March 15, 2026 and will expire March 15, 2031.

Context

This final action ensures that the current NWPs will not lapse before their expiration on March 14, 2026, in addition to making other changes. It also provides the Corps’ response to comments from interested stakeholders received on its June 2025 Notice of Proposed Rulemaking.

NWPs are general permits the Corps issues to authorize categories of activities under Clean Water Act (CWA) Section 404—discharges of dredged or fill material into waters of the United States. These permits are (re)issued in five-year cycles. For certain activities (“structures” or “work” in navigable waters), Section 10 of the Rivers and Harbors Act of 1899 controls.

Key Updates

The Corps declined to make substantial changes to the program requested by some stakeholders and instead adopted a modest approach. In this way, the Corps adopted a compromise approach, leaving the door open for further engagement around other changes that industry coalitions had requested. Key updates include:

Data centers and other commercial developments: For data center developers and the infrastructure that supports them, the most notable change is that NWP 39 (Commercial and Institutional Developments) now explicitly lists “data centers (to include for example, artificial intelligence and machine learning facilities).” A similar addition is made for “pharmaceutical manufacturing facilities,” among other commercial examples, which are non-exclusive. However, NWP 39, as with other reissued permits, retains its core constraints, including the half-acre loss limit and requirement to submit preconstruction notification (PCN) before commencing an activity.

Pipelines and utility lines: The Corps continues what it describes as its longstanding approach to single and complete linear projects, treating separate and distant crossings as potentially eligible for separate authorizations consistent with Corps regulations. It also declined to define “separate and distant,” thereby retaining flexibility. In addition, utilities, telecom, and other linear infrastructure stakeholders should note:

• The final rule adopts newly proposed permit notes in NWP 12, 57, and 58, encouraging early coordination with the U.S. Coast Guard by providing the location and dimensions of proposed structure or work, while separately directing as-built submissions to NOAA/NOS for charting updates.

Aquatic restoration and fish passage: The Corps finalizes the proposed new fish passage permit, which was proposed as “NWP A” and is issued in the final rules as NWP 60. Key constraints and features include:

• A one-acre “loss of waters” limit;
• No dam removal authority under this NWP;
• A PCN trigger for activities resulting in loss of greater than 1/10-acre; and
• Expanded examples (e.g., fish screens, fish lifts, fish bypass pipes, devices to guide fish) added in response to comments.

The Corps generally expects these adjustments to shift projects from individual permits to NWPs.

State assumption of permitting programs: NWP 24 (Indian Tribe or State Administered Section 404 Programs) now lists Michigan and New Jersey, but not Florida, reflecting the currently approved states and tribes to administer CWA 404 for purposes of this NWP.

Mariculture and litigation-driven changes: Consistent with the litigation-driven issues discussed in the Notice of Proposed Rulemaking and in Sidley’s June 2025 post, the final rules reflect that (1) NWP 56 is “reserved” (i.e., not reissued), and (2) NWP 48 (Commercial Shellfish Mariculture Activities) now states it does not authorize activities in Washington state.

Response to Comments

Some of the actions the Corps did not take are notable, including:

• Maintaining existing national safeguards. The Corps retains the acreage limits for NWPs with specified acreage caps, and points to regional general permits as providing potential flexibility for certain activities.
  • Retaining the process of allowing PCNs to be “deemed authorized.” The Corps declined to require a written response for every PCN and reaffirmed the existing framework: an activity may proceed if the Corps provides written verification or if 45 days pass after the district engineer receives a complete PCN without responding. It also declined requests to shorten the time for completeness determinations, stating that 30 days is necessary.
  • Declining to broaden “oil or natural gas pipeline” The Corps declined to expand the definition of “oil or natural gas pipeline” to include “any liquid or gaseous fuel” or hydrogen, pointing instead to NWP 58 (e.g., utility line authorities for “water and other substances”), depending on the substance
  • Declining to add tribal consultation roles/responsibilities in General Condition 20. The Corps declined requests to modify General Condition 20 to include definitions for roles and responsibilities for tribal consultation or to restrict permittee actions beyond the existing framework, stating that Section 106 consultation will proceed under established NHPA processes and guidance.

This post is as of the posting date stated above. Sidley Austin LLP assumes no duty to update this post or post about any subsequent developments having a bearing on this post.