The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have released a supplemental proposed rule revising the federal definition of "waters of the United States" — the regulatory shorthand known as WOTUS. The proposal, flagged in a legal alert from Davis Wright Tremaine titled "EPA and Army Corps Issue Supplemental WOTUS Proposal: How It Could Affect Your Projects," will reshape Clean Water Act Section 404 dredge-and-fill permitting for landfill expansions, transfer stations, composting operations and recycling-infrastructure projects sited near drainage features that may no longer qualify as federally regulated waters.

What a WOTUS definition actually decides

The Clean Water Act extends federal authority to discharges of dredged or fill material into "navigable waters," a phrase defined through agency rulemaking as the WOTUS category. A rewrite therefore reaches well beyond stream-corridor restoration and into industrial-site construction. Material recovery facility (MRF) expansions, recycling-park development on brownfields, anaerobic digester siting and organics-processing hubs near headwater streams all face a Section 404 permit whenever construction would dredge or fill a covered water.

Why the "supplemental" label matters

The supplemental tag signals that EPA and the Corps are reopening an earlier rule rather than starting fresh. Davis Wright Tremaine's alert directs project owners, developers and counsel to review how revised jurisdictional criteria map onto pending and planned facility work. Industry lawyers track supplemental proposals as the federal government's attempt to reconcile prior regulatory text with intervening court rulings, executive directives or peer-reviewed science.

Changes to the "tributary," "adjacent," "intermittent" and "relatively permanent" criteria will drive whether a particular ditch, swale, storm system or isolated wetland on an industrial parcel triggers a federal permit at all. For waste and recycling operators, the operational question is binary: does a planned project need a Section 404 permit, or can it proceed under state-level stormwater and grading authorities alone?

Permitting implications for recycling and waste projects

Pre-application jurisdictional determinations — the Corps' formal findings that a specific feature is or is not a water of the United States — feed directly into engineering siting decisions. Where a facility avoids Section 404 review, project timelines compress sharply. Where a permit is required, sponsors face an extended review track that can stretch from many months to multiple years depending on project complexity.

For sponsors planning new builds or expansions, the supplemental rule redraws the permitting map. Landfill cells, organics-processing sites and material-handling facilities will all be re-tested against the new federal jurisdictional standard during their next pre-application consultation with the relevant Corps district.

What to watch next

The proposal now enters a public-comment period before the agencies can publish a final rule. Project owners planning landfill cells, recycling facilities or organics-processing sites that touch on-site drainage features should monitor the precise language defining tributaries and intermittent channels, the treatment of features without surface hydrologic connection, the status of approved jurisdictional determinations during the transition period, and any industry-tailored guidance issued through trade associations serving the waste, recycling and organics sectors.

The milestone that decides what happens next is EPA's publication of a final rule. Once that document lands in the Federal Register, every pending jurisdictional determination on a waste or recycling project enters the transition protocols the agencies will set — the moment when permitting timelines for material-handling facilities either shorten or lengthen across the country.