Nationwide Permit 38 authorizes specific activities required to contain, stabilize, or remove hazardous or toxic waste materials. This permit is used for remediation projects performed, ordered, or sponsored by a government agency with established legal or regulatory authority. It also covers court-ordered remedial action plans or related legal settlements. The scope includes both work in navigable waters under Section 10 and the discharge of fill material under Section 404. However, it specifically prohibits the establishment of new disposal sites or the expansion of existing sites used for hazardous waste disposal. The permit is designed to facilitate the cleanup of contaminated sites while ensuring the methods used for remediation do not themselves cause significant environmental harm.
The 2026 reissuance of NWP 38 contains no substantive changes to its national terms or conditions compared to the 2021 version. The Corps reevaluated the permit's individual and cumulative effects and determined that the existing requirement for a mandatory pre-construction notification (PCN) for all projects remains a sufficient safeguard for protecting the aquatic environment. While the regulatory requirements remain identical, the supporting decision document was updated with current environmental baseline data. This includes results from recent national assessments, such as the 2022 National Lakes Assessment and the 2021 National Wetland Condition Assessment, to ensure the impact analysis is grounded in the most current available ecological data.
Compliance managers, environmental remediation contractors, and government agencies (EPA, state environmental departments) use this permit. it is essential for projects involving the cleanup of Brownfields, Superfund sites, or other areas where hazardous materials must be contained or removed from jurisdictional waters.
The Corps determined that reissuing NWP 38 has 'no effect' on federally-listed endangered or threatened species or their critical habitat. This finding is anchored by General Condition 18, which requires project-specific Section 7 consultation if an activity 'might affect' listed resources; no activity is authorized until the consultation process is complete. Compliance with Section 106 of the National Historic Preservation Act is ensured through General Condition 20. Because every project under NWP 38 requires a PCN, district engineers are able to review each remediation plan for potential impacts to historic properties. For Essential Fish Habitat (EFH), district engineers can apply regional conditions to ensure that cleanup activities do not cause more than minimal adverse effects on sensitive aquatic life.
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