Nationwide Permit 39 authorizes the discharge of dredged or fill material into non-tidal waters of the United States for the construction or expansion of commercial and institutional developments. This includes building foundations, pads, and all necessary attendant features required for the operation of the facility. The permit is designed to provide a streamlined authorization process for projects that have minimal impacts on the aquatic environment. The scope of authorized attendant features is broad, covering infrastructure such as roads, parking lots, utility lines, storm water management facilities, and even recreational areas like small playing fields associated with the development. It applies to a variety of sectors including retail, light industry, schools, hospitals, and government office complexes, provided the project is located in non-tidal waters and avoids wetlands adjacent to tidal waters.
The 2026 reissuance of NWP 39 maintains the same national terms, conditions, and acreage limits as the 2021 version. The Corps reevaluated the 1/2-acre limit and the mandatory pre-construction notification requirement, determining that these thresholds effectively ensure that authorized activities result in no more than minimal individual and cumulative adverse environmental effects. While the regulatory requirements remain consistent, the supporting decision document has been updated with the most recent environmental baseline data. This includes results from the 2022 National Lakes Assessment and the 2021 National Wetland Condition Assessment. These updates ensure the Corps' cumulative impact analysis is grounded in the latest available scientific data regarding the health of the Nation's wetlands and open waters.
Real estate developers, civil engineers, municipal planners, and institutional facility managers use this permit. It is the primary regulatory vehicle for projects involving the construction of office buildings, shopping centers, schools, and hospitals that require fill in non-tidal wetlands or streams.
The Corps determined that reissuing NWP 39 has 'no effect' on federally-listed endangered or threatened species or their critical habitat. This finding relies on General Condition 18, which prohibits any activity that 'might affect' listed resources from proceeding until a project-specific Section 7 consultation is completed. Because every NWP 39 project requires a notification, the district engineer reviews each one for potential impacts to these species. Compliance with Section 106 of the National Historic Preservation Act is similarly ensured through General Condition 20. The mandatory notification process allows the Corps to evaluate every proposed development for potential effects on historic properties. For Essential Fish Habitat (EFH), district engineers can apply regional conditions or conduct project-specific consultations to ensure that commercial construction does not cause more than minimal adverse effects on sensitive aquatic environments.
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