March 15, 2026 marked the start of a new five-year cycle for the U.S. Army Corps of Engineers’ Nationwide Permits (NWPs).  Pursuant to a final rule published on January 8, 2026, the Corps has reissued and modified 56 existing NWPs and created one new NWP.  This blog post highlights key changes in the 2026 NWPs, discusses potential legal hurdles for the Corps related to the Endangered Species Act (ESA), and provides information related to the Corps’ request for public participation in its next round of NWPs.

The NWPs provide a streamlined process for the Corps to authorize certain classes of activities that have no more than minimal individual and cumulative adverse environmental effects and that would ordinarily require individual federal permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899.  NWPs expire every five years, and the Corps typically reissues the permits on a five-year cycle.  However, under 33 CFR § 330.6(b), the Corps may modify, reissue, or revoke the NWPs at any time.  The Corps last modified the NWPs in January 2021, as we previously explored in depth in this blog post.  The 2021 permits expired on March 14, 2026.  This year’s NWPs provide for a one-year grandfathering period, which allows projects authorized under the 2021 NWPs that were under construction or under contract to commence by March 14, 2026 to continue through March 14, 2027 without obtaining new authorization from the Corps.  Activities that will not be completed by March 14, 2027 will require reauthorization.

The 2026 NWPs largely preserve the prior iteration of the permits, while incorporating a few key substantive and procedural shifts.  The Corps’ emphasis on nature‑based solutions, expansion of coverage to include emerging and fast‑growing industries, and creation of NWP 60 underscore an effort to align the NWPs with contemporary environmental and infrastructure priorities.  At the same time, the Corps’ continued decision not to undertake an ESA Section 7 consultation in issuing the permits—coupled with its addition of a severability clause—seems to be an acknowledgement that the NWPs remain vulnerable to legal challenge.

Key Changes in the 2026 NWPs

In 2026 the Corps reissued or modified 56 existing NWPs and created one new NWP:

• NWPs 13, 27, 43, and 54, which cover bank stabilization activities, aquatic ecosystem restoration, enhancement, and establishment activities, stormwater management facilities, and living shorelines, were modified to “encourage the incorporation of nature-based solutions” into projects requiring such permits. The new NWPs define “nature-based solutions” as “[a]ctions to protect, sustainably manage, and restore natural or modified ecosystems, that address societal challenges effectively and adaptively, simultaneously providing human well-being and biodiversity benefits.”
• NWP 39, which authorizes activities associated with commercial and institutional developments, was modified to explicitly include data centers, pharmaceutical manufacturing, and storage facilities. The Corps noted that this modification was made partly in response to industry comments reflecting the rapid proliferation of data centers throughout the country.
• NWP 54, covering activities related to living shorelines, was modified to clarify that a portion of a living shoreline may consist of an unvegetated cobble or sand beach, as well as to expand the scope of the permit to authorize temporary fills and structures that are necessary to construct such shorelines.
• The sole new permit, NWP 60, covers activities aimed at improving the passage of fish and aquatic organisms through aquatic ecosystems. Contemplated covered activities include work related to installing fish bypass channels, fish screens, fish lifts, and fish by-pass pipes.  The permit authorizes discharges of dredged or fill material into water as well as structures and work that cause a loss of up to one acre of waters of the United States in service of this goal.

Endangered Species Act Challenges Remain

The Corps’ NWP program has previously been subject to legal challenge related to compliance with the ESA.  Notably, in April 2020, the U.S. District Court for the District of Montana partially vacated NWP 12 on the basis that the Corps failed to conduct a consultation under Section 7 of the ESA.  A few months later, the U.S. Supreme Court stayed the District Court’s order granting partial vacatur of the rule.  In spite of the District Court’s April 2020 ruling that the Corps had violated the ESA in reissuing NWP 12, the Corps declined—as it did in 2021—to undertake an ESA consultation in issuing the 2026 NWPs.  Accordingly, the most recent permits remain vulnerable to challenges under the theory adopted by the Montana District Court.

In response to this and other litigation, this year’s NWPs contain a new severability clause stating that each NWP in the final rule “operates independently and is an individual agency action,” and that invalidation of any specific NWP by judicial review or operation of law will not render the other NWPs invalid.  By similar logic, if a determination is made that an NWP is inapplicable to a specific activity in a particular location, the Corps intends that such determination does not render the NWP inapplicable to all other eligible activities.

Corps Seeks Input Ahead of 2031 NWPs

The Corps also recently announced that it is seeking public input on its NWP program in the lead-up to its 2031 NWPs.  The Corps will accept comments submitted via regulations.gov or postmarked on or before May 15, 2026.  Among the stated areas of Corps interest are the following:

• What measures should the Corps consider that would eliminate unnecessary review over jurisdictional activities that do not require heightened scrutiny? For instance, are there any pre-construction notification (PCN) requirements, NWP impact limits, or general conditions that should be modified or should remain unchanged?
• What measures should the Corps consider that would improve or maintain efficiency in the review of preconstruction notifications or issuance of NWP verifications? For instance, are there any requirements for agency coordination of a PCN, contents of a complete PCN, or verification compliance with applicable federal procedural laws and implementing regulations that should be modified or remain unchanged?
• What categories of activities that are similar in nature should the Corps consider for establishing new NWPs?
• What measures should the Corps consider to ensure that discharges of dredged or fill material into waters of the United States would cause no more than minimal adverse environmental effects both individually and cumulatively? For instance, are there NWP terms, general conditions, or processes that should be modified or remain unchanged?
• What measures should the Corps consider to develop NWPs, terms, general conditions, or processes for the transportation and disposal of dredged material into ocean waters?
• What measures should the Corps consider to improve existing regulations regarding general permits or the implementation of the NWP program? For instance, what changes should the Corps consider that would increase the efficiency of the Chief of Engineer’s decision-making process to reissue the NWPs?