February 23, 2026

Court Revives Lawsuit Challenging Implementation of Endangered Species Act for Coal Mining Projects

Charleston, WV

Environmental Alert

(by Christopher (Kip) Power and Robert Stonestreet)

A federal court has revived a dormant lawsuit challenging a fundamental procedure for implementation of the federal Endangered Species Act (ESA) for coal mining projects.  The outcome of this lawsuit will likely have a substantial impact on the permitting and regulation of coal mining operations in the United States.

Section 7 of the ESA prohibits any federal agency from authorizing an action that is likely to “jeopardize the continued existence of” any endangered or threatened species, or cause “the destruction or modification of [designated critical habitat] of such species.” 16 U.S.C. § 1536(a). To ensure that their permitting or other actions will not violate this prohibition, federal agencies are required to consult with the U.S. Fish and Wildlife Service (Service) within the U.S. Department of the Interior.  The Service is the primary federal agency responsible for enforcing the ESA. Somewhat related to the Section 7 prohibition, Section 9 of the ESA forbids any person from “taking” an endangered species, which includes actions that “harm” such species in any way (whether permitted under a separate regulatory program or not).  16 U.S.C. § 1538 (a)(1)(B).

The federal Surface Mining Control and Reclamation Act of 1977 (SMCRA) is a comprehensive, multi-media statute regulating the environmental aspects of coal mining. SMCRA created the Office of Surface Mining Reclamation and Enforcement (OSM), a sister agency to the Service within the Interior Department, to promulgate and administer rules for issuing mining permits and establishing environmental protection performance standards for permitted mining operations. SMCRA recognizes that, due to differences in geology and other environmental conditions among the States, governmental responsibility for implementing its requirements “should rest with the States.” SMCRA § 101(f). …

February 18, 2026

New EPA Webpage Compiles Clean Air Act Resources for Data Center & AI Projects

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Gary Steinbauer, Gina Falaschi Buchman, and Christina Puhnaty)

In response to President Trump’s Executive Order 14179, “Removing Barriers to American Leadership in Artificial Intelligence (AI),” EPA announced this week a new EPA webpage dedicated to compiling agency resources related to the Clean Air Act requirements potentially applicable to the development of data centers and AI facilities across the United States. The webpage, Clean Air Act Resources for Data Centers, is intended to promote transparency by aiding developers and other interested parties in locating various agency resources, including Clean Air Act regulations, interpretative guidance, and technical tools, that may assist with Clean Air Act permitting and air quality modeling during project development.

In addition to linking to potentially applicable EPA regulations, the webpage provides in one place various historical EPA guidance documents relating to the federal New Source Review (“NSR”) and Title V permitting programs. These guidance documents include interpretation letters and memoranda related to calculating and limiting a source’s potential to emit, assessing whether multiple projects must be aggregated for purposes of determining major NSR applicability, and determining when an operator may initiate construction activities of a major NSR source prior to obtaining a construction permit. The webpage also includes a News and Updates section that houses recent EPA announcements relating to data center and AI facility development.

Notably, the webpage explains that in an effort to advance cooperative federalism, EPA’s Office of Air and Radiation (“OAR”) staff are “available to consult with permit reviewing authorities and individual sources on a case-by-case basis to identify existing data, models, and tools to demonstrate compliance and, as appropriate, exercise discretion and flexibilities in the permitting processes.” The webpage encourages both permitting authorities and permit applicants to contact their EPA Regional Offices and EPA’s Data Centers Team to engage OAR staff members on projects. …

February 16, 2026

In a Significant Step Towards Deregulation, EPA Repeals 2009 Endangerment Finding and Federal Greenhouse Gas Standards for Vehicles and Engines

Pittsburgh, PA and Washington, DC

Environmental Alert

(by Gina Buchman, Gary Steinbauer, Christina Puhnaty and Alex Graf)

On February 12, 2026, the U.S. EPA announced a rule finalizing EPA’s repeal of the Obama administration’s 2009 Endangerment Finding as well as all federal greenhouse gas emissions standards for vehicles and engines of model years 2012 and beyond (Final Rule). Administrator Zeldin originally announced the agency’s intent to do so in March of 2025 as part of the agency’s “31 Historic Actions to Power the Great American Comeback” announcement, and a proposed rule was issued in August of 2025. See 90 Fed. Reg. 36288 (Aug. 1, 2025). The Final Rule has not yet been published in the Federal Register, but a pre-publication version of the Final Rule is available on EPA’s website.

The “endangerment finding” refers to the finding EPA made in 2009 prior to setting emissions standards for new motor vehicles and engines pursuant to Section 202(a)(1) of the Clean Air Act, which requires EPA to regulate “the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which . . . cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” In 2009, EPA concluded that “the current and projected concentrations of the six key well-mixed greenhouse gases—carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride—in the atmosphere threaten the public health and welfare of current and future generations.” 74 Fed. Reg. 66496 (Dec. 15, 2009). …

February 12, 2026

Who’s Really in the Room? Hidden Risks of AI Note-Takers

Pittsburgh, PA

TEQ Hub

(by Jenn Malik and Peter Zittel)

Most companies would never allow an unknown third party to sit in on executive level strategy sessions, legal consultations, or sensitive personnel discussions.  Yet AI meeting assistants now perform a functional equivalent of that role, often without formal approval, policy guidance, or executive awareness.  What may at first appear to be a simple productivity tool can, in practice, create significant legal and financial exposure.  These AI meeting assistants are increasingly transforming ordinary business conversations into permanent, searchable data sets, in turn raising issues of privilege waiver, regulatory compliance, and potential litigation cost that many organizations have not yet confronted.

For business leaders, this realization raises an uncomfortable reality: what was assumed to be a confidential internal discussion may now exist as a permanent data record outside the organization’s control.

In August 2025, similar circumstances gave rise to a nationwide class action lawsuit alleging that an AI meeting assistant unlawfully intercepted and recorded private video-conference meetings without obtaining consent from all participants.  The plaintiffs in Brewer v. Otter.ai claim the AI tool joined meetings as an autonomous participant, transmitted conversations to third-party servers for transcription, recorded individuals who were not account holders, provided limited or unclear notice, and placed the burden of obtaining consent on meeting hosts.  The lawsuit further alleges that recordings were retained indefinitely and used to train AI models, including the voices of individuals who were unaware they were being recorded.  While the legal claims are still unfolding, the case underscores a broader and more immediate concern for business owners: AI meeting assistants can quietly convert everyday business conversations into legally consequential data assets, creating exposure well beyond what most organizations anticipate. …

February 12, 2026

Limiting Growth – Can ACRE, and Right-to-Farm Help Protect a New “Normal” in Agricultural Operations?

Pittsburgh, PA

The Legal Intelligencer

(by Max Junker and Anna Jewart)

In general, Pennsylvania municipalities have broad discretion over land-use regulations. Typically, so long as a municipality acts within the parameters of the Pennsylvania Municipalities Planning Code, 53 P.S. §10101 et seq. (“MPC”), it is relatively free to regulate where any given land use can operate within its boundaries.  At times, the courts may step in where a regulation is unreasonable, arbitrary, or confiscatory, but the legislature has been reluctant to interfere with local control over land use and development.  One rare exception to the rule is farming, where the legislature has stepped in to protect “normal agricultural operations” from unreasonable local regulation.  The Right to Farm Act, 3 P.S. §§ 951-958 (“RTFA”) was adopted to limit “the circumstances under which agricultural operations may be subject matter of nuisance suits and ordinances”. The RTFA works in tandem with the Agricultural Communities and Rural Environment Act (“ACRE”), 3 Pa.C.S. § 101 et seq.  As described by the Pennsylvania Farm Bureau, ACRE provides a means for farmers burdened by ordinances that illegally inhibit farming practices to initiate a process to challenge and invalidate the ordinance.

Both ACRE and the RTFA only protect “normal agricultural operations”, a statutory definition under Section 2 of the RTFA which includes the “activities, practices, equipment and procedures that farmers adopt, use or engage in the production and preparation for market of poultry, livestock and their products and in the production, harvesting and preparation for market or use of agricultural, agronomic, horticultural, silvicultural and aquacultural crops and commodities. . .” 3 P.S. §952. The activity must not be less than 10 contiguous acres, or in the alternative, have a yearly gross income of at least $10,000.   …

February 10, 2026

Legislative & Regulatory Update

Pittsburgh, PA

The Wildcatter

(by Nik Tysiak)

Just a few cases to report this time.

Property Tax Assessment and Pipeline Valuation
The West Virginia Intermediate Court of Appeals in Lemley v. MarkWest Liberty Midstream & Resources, LLC, — S.E.2d —-(2025) established significant precedent for oil and gas transportation infrastructure taxation. The court affirmed the Office of Tax Appeals’ application of a 35% reduction in assessed value for 20-inch natural gas liquid pipelines due to economic obsolescence. The court held that external market forces beyond an operator’s control, including COVID-19 pandemic impacts, can justify substantial economic obsolescence adjustments when pipelines operate significantly below design capacity.

The decision recognized that beginning in 2018, MarkWest installed 20-inch NGL lines anticipating increased production that never materialized due to market conditions that lessened demand for NGLs and led to scaling back of planned natural gas processing facilities. The court found that calculations showing pipeline utilization at only 28%, 36%, and 47% of design capacity demonstrated that economic obsolescence was necessary to fairly value the pipelines. This represents a significant shift in how underutilized oil and gas transportation infrastructure may be assessed for property tax purposes.

The court also confirmed important procedural changes affecting oil and gas operators challenging property tax assessments. Effective January 1, 2023, the West Virginia Legislature transferred jurisdiction over contested property tax matters from county commissions to the Office of Tax Appeals, establishing OTA as an independent quasi-judicial agency with de novo hearing authority. Most significantly, the Legislature reduced the burden of proof for taxpayers from “clear and convincing evidence” to a “preponderance of the evidence” standard, representing a substantial reduction in the evidentiary burden for oil and gas operators disputing tax assessments. …

February 10, 2026

Commonwealth Court: “Agrivoltaics” Does Not Render Solar Farm an Agricultural Use

Harrisburg, PA and Pittsburgh, PA

Renewables Alert

(by Morgan Madden and Anna Jewart)

While agrivoltaics, the practice of combining photovoltaic electric generation with agricultural production, dates back to the early 1980s, the use thereof has gained increasing popularity over the past 10-15 years.[1] To farmland owners and solar project developers alike, the promotion of agrivoltaics offers potential for expanded opportunities in both the solar industry and the agricultural sector. Often, when use of agricultural land is proposed to be used for solar generation, the landowner remains intent on continuing to crop-farm (agrovoltaics), or to allow livestock grazing (rangevoltaics) on the property and in modern industry spaces, solar and agriculture are often considered compatible uses. Despite that reality, zoning ordinances do not often contemplate a mixed use of that nature.  Consequently, Babst Calland is often asked to analyze whether or not an agrivoltaic use can proceed as an “agriculture” or “farming” use under local zoning ordinances.

Due to the highly-localized nature of land use regulation in Pennsylvania, what “use” applies to a proposed solar project will depend first and foremost on the applicable local ordinance. However, recently, on January 15, 2026, the Pennsylvania Commonwealth Court in West Lampeter Solar 1, LLC v. West Lampeter Township Zoning Hearing Board, 2026 WL 110932, No. 76 C.D. 2025 (Pa. Cmwth. Jan. 15, 2026)[2] rejected a developer’s assertion that its proposed “agrivoltaics solar farm” was an “agricultural use” for purposes of zoning approval. In doing so, the Court appeared to reject the contention that energy generation could be considered agricultural in any instance, potentially throwing both literal and figurative shade on projects seeking to benefit from agrivoltaics processes.

In West Lampeter Solar, the solar developer applicant sought special exception approval from the West Lampeter, Lancaster County, Zoning Hearing Board as a use not provided for in an agricultural district. …

January 22, 2026

Oral Argument Held in D.C. Circuit Litigation on PFOA and PFOS CERCLA Hazardous Substance Designation

Washington, DC and Pittsburgh, PA

Environmental Alert

(by Sloane Wildman and Alex Graf)

After EPA announced that it would retain the CERCLA hazardous substance designations for PFOA and PFOS on September 17, 2025, it filed a motion to lift the abeyance from the ongoing litigation regarding the designations in the D.C. Circuit in Chamber of Commerce of the United States of America v. EPA, No. 24-1193 (D.C. Cir.). The case was initiated in June 2024 when the U.S. Chamber of Commerce and other industry groups challenged the Biden administration’s final rule designating PFOA and PFOS as CERCLA hazardous substances in the D.C. Circuit. In February 2025, after the Trump administration took office, EPA requested that the court hold the case in abeyance while it considered whether it would take a different position on the designation.

After briefing concluded, oral argument was held before a panel of three D.C. Circuit judges on January 20, 2026. Although the parties’ oral arguments largely focused on the cost-benefit analysis conducted by EPA in promulgating the final rule, the ultimate issue in the case is whether EPA properly exercised its authority under CERCLA Section 102(a) to list PFOA and PFOS as hazardous substances, since they were not already designated under another environmental statute. The court is likely to issue an opinion sometime later this year.

Please see Babst Calland’s September 19, 2025 Environmental Alert for more information on EPA’s retention of the PFOA and PFOS hazardous substance designations.

Babst Calland’s Environmental Practice Group is closely tracking EPA’s PFAS actions and related litigation, and our attorneys are available to provide strategic advice on how developing PFAS regulations may affect your business. …

January 22, 2026

Pennsylvania’s New CROWN Act Banning Hair-Based Discrimination Takes Effect

Pittsburgh, PA

Employment and Labor Alert

(by Cella Iovino and Katerina Vassil)

Over half of the states in the U.S. have enacted legislation to prohibit hair-based discrimination, and Pennsylvania has now followed suit. The Creating a Respectful and Open World for Natural Hair (CROWN) Act, signed into law on November 25, 2025, goes into effect on January 24, 2026. This state-wide measure follows CROWN Act ordinances passed by the Allegheny County and Pittsburgh City Councils in 2020 offering local protections, but Pennsylvania’s new law has several unique nuances.

The purpose of the CROWN Act is to address longstanding biases where natural hair and protective styles were deemed to be unprofessional or inappropriate, resulting in racial or religious discrimination. To target this bias, the CROWN Act amends the Pennsylvania Human Relations Act (PHRA) to include protection against discrimination based on hair texture, type, and styles commonly or historically associated with one’s race or religion. Specifically, “race” under the PHRA is expanded to include “traits historically associated with the individual’s race, including hair texture and protective hairstyle.” The CROWN Act defines “protective hairstyle” under the PHRA to include locs, braids, twists, coils, Bantu knots, afros, and extensions, though it is not limited to these examples. The CROWN Act also adds to the PHRA’s definition of “religious creed” to now include “head coverings and hairstyles historically associated with religious creeds.”

Unlike the Allegheny County and Pittsburgh ordinances, the Pennsylvania CROWN Act includes a strict four-part test that employers must meet in order to adopt rules, policies, or grooming standards that impact traits, hairstyles, and head coverings historically associated with one’s race or religion as a “justified bona fide occupational requirement.” To comply with the law, an employer’s policy that impacts such hair textures or protective hairstyles must be: (1) necessary to protect the health or safety of an employee or other materially protected person; …

January 16, 2026

Powering the Region’s Data Center Growth

Pittsburgh, PA

TEQ Hub

(featuring Justine Kasznica)

The rapid growth of data centers – driven by cloud computing, artificial intelligence, and the need for low-latency digital infrastructure – has transformed what were once primarily real estate projects into some of the most complex developments in the energy and infrastructure sectors in our region.

At the core of modern data center development is power. Securing sufficient, reliable, and resilient electricity has become one of the defining challenges for developers, particularly as grid congestion, interconnection delays, and regulatory scrutiny increase. Many projects now require sophisticated power purchase agreements (PPAs), power generation agreements (PGAs), and on-site or co-located generation solutions to meet capacity and uptime requirements.

Today’s data center projects sit at the intersection of power generation, environmental regulation, land use, construction, and technology governance, requiring coordinated legal strategies across multiple disciplines. Babst Calland’s legal team has become increasingly involved from the earliest stages of development on projects – advising on site acquisition and control, evaluating water and energy access, and assessing regulatory and permitting risks across state and federal jurisdictions, and land use and zoning approvals, including variances and conditional use permits, often require public hearings and coordination with local governments, which often add another layer of complexity and potential delay.

Behind-the-Meter Power and Islanded Systems Gain Momentum

Grounded in active, large-scale work, Babst Calland is currently guiding the development of well over 3,000 megawatts of new power generation capacity tied to data center projects across Pennsylvania and West Virginia. These projects range from hyperscale campuses to smaller modular facilities encompassing the design, permitting, interconnection, and financing of both behind-the-meter generation assets, such as natural gas turbines and solar paired with battery storage, as well as fully islanded power systems. …

January 15, 2026

Draft Programmatic Environmental Assessment for Drone Package Deliveries: Implications and Uncertainty

Pittsburgh, PA

Firm Alert

(by Justine Kasznica, Mackenzie Moyer and Jeff Immel)

On December 9, 2025, the Federal Aviation Administration (FAA) published a Notice of Availability and Request for Comment on the Draft Programmatic Environmental Assessment (PEA) for Drone Package Delivery Operations in the United States.[1]  The PEA was issued pursuant to the FAA Reauthorization Act of 2024’s requirement that FAA examine and integrate programmatic-level approaches to the requirements of the National Environmental Policy Act (NEPA) for Unmanned Aircraft Systems (UAS) package delivery.  The stated purpose of the PEA, and the hope of both FAA and industry, is to “streamline the NEPA process for multiple repetitive actions by broadly analyzing reasonably foreseeable direct and indirect impacts that may occur as a result of Part 135 approvals for drone operators throughout the U.S.”[2]

Streamlining the NEPA process is a worthy goal.  Since 2019 when the FAA began issuing air carrier certificates to drone operators in accordance with 14 C.F.R. Part 119 for operations under 14 C.F.R. Part 135, FAA has conducted environmental reviews, and has issued Environmental Assessments (EA), for 23 individual drone package delivery proposals.[3]

Each EA resulted in a Finding of No Significant Impact (FONSI), meaning that FAA determined that significant environmental impacts as a result of the operation were unlikely.  Each environmental review was time consuming, resource intensive, and was often a gating factor in beginning operations.  NEPA, however, permits agencies to conduct a broader environmental review on a site- or project-specific level, known as programmatic NEPA review. Agencies may then create a PEA or a Programmatic Environmental Impact Statement (PEIS) and make informed decisions based on a tiered NEPA review.  …

January 9, 2026

Faulty Wiring: Fraud’s Growing Threat to Construction

Pittsburgh, PA

Breaking Ground

(by Marc Felezzola and Ryan McCann)

I. Blueprints for Disaster: Foundational Failures of a Different Kind

In construction, the biggest threat isn’t a faulty foundation, it’s a compromised inbox. Courts nationwide have seen a surge in cases involving fraudulent wire-transfer instructions due to bad actors inserting themselves into legitimate transactions and siphoning funds before anyone notices. Because progress payments routinely travel by wire and project timelines depend on fast, clean transfers, the construction industry is becoming an increasingly attractive target. Understanding how these schemes work, how to guard against them, and what remedies remain once the money disappears is now essential for every member of the industry.

II. How Wire-Fraud Schemes Operate

In 2024 and 2025, wire transfers were the payment method most frequently targeted by business email compromise scams. These schemes often unfold quietly: a hacker slips into a company’s email system, studies the back-and-forth between parties negotiating a payment, and waits until transfer of funds is imminent. Then the hacker intervenes—diverting legitimate emails, impersonating one party by using a near-identical address, and sending counterfeit wire instructions in the hope that the recipient won’t spot the subtle switch. Most businesses usually do not become aware of the fraud until it is too late. Additionally, scammers have found success through sending deceptive emails that appear to come from a trusted source to trick recipients into providing sensitive information. Similarly, hackers have also begun sending fake invoices that closely resemble legitimate ones from real suppliers leading companies to wire money directly into the scammer’s account.

III. Why the Construction Industry is Uniquely Vulnerable

Despite the availability of safeguards, many construction companies operate without them, making the industry uniquely susceptible to the very risks these practices are designed to prevent. …

January 2, 2026

Babst Calland Names Tiffany M. Arbaugh, Alexandra G. Farone and Stefanie Pitcavage Mekilo Shareholders

Charleston, WV, Pittsburgh, PA, Harrisburg, PA

Babst Calland recently named Tiffany M. Arbaugh, Alexandra G. Farone and Stefanie Pitcavage Mekilo shareholders.

Tiffany Arbaugh practices in the Firm’s Charleston, W.Va. office and is a member of the Energy and Natural Resources and Litigation groups. Tiffany has more than twenty years of experience and focuses her practice on representing corporations in a variety of litigation matters with an emphasis in corporate transactions and all facets of energy-related litigation including mineral title, real estate, trespass, fraud, title curative, personal injury and toxic torts. Her practice also includes advising clients in customary business operations, litigation avoidance strategies and litigation preparedness. Tiffany is a 2005 graduate of Appalachian School of Law.

Alexandra Farone practices in the Firm’s Pittsburgh, Pa. office and is a member of the Employment and Labor, Litigation, and Emerging Technologies groups. Alex has extensive experience advising and representing corporate, technology, municipal, and energy clients in employment and labor law and complex commercial litigation. Her practice includes comprehensive human resources counseling and litigation for employers ranging from Fortune 500 companies and startups to municipalities, police departments, family-owned businesses, healthcare providers, financial services and technology companies. She advises on restrictive covenants, discrimination and harassment, disability accommodation, grievances, personnel best practices, contract negotiations, wage and hour issues, and collective bargaining, and litigates matters involving complex commercial disputes, trade secrets, employment discrimination, restrictive covenants, product liability, and toxic torts. Alex also has additional experience litigating matters concerning technology, insurance, construction, class actions, maritime, environmental, and oil and gas law. She is a 2017 graduate of the University of Pittsburgh School of Law.

Stefanie Pitcavage Mekilo practices in the Firm’s Harrisburg, Pa. office. Stefanie is a civil litigator who draws on more than a decade of trial-court experience in the federal judiciary to guide clients through all aspects of the litigation process. …

December 24, 2025

Eavesdropping by Algorithm: Legal Risks of AI Meeting Assistants

Pittsburgh, PA

The Legal Intelligencer

(by Jenn Malik and Peter Zittel)

Imagine sitting down for a virtual meeting where sensitive legal matters are being discussed and internal strategy decisions are unfolding, with everyone assuming the conversation is confidential and limited to the people on the call. Only later does someone in the meeting realize that a small “note-taker” icon was glowing in the corner of the screen, an artificial intelligence tool was present, recording and transcribing every word that was said. In that moment, the participants realize that what they assumed was a confidential discussion may indeed, not be so private.

These are the exact events that resulted in the filing of a nationwide class action in August 2025. In Brewer v. Otter.ai, plaintiffs allege that Otter.ai’s “Notetaker” and “OtterPilot” tools unlawfully intercepted and recorded private video-conference meetings without obtaining consent from all participants. The complaint claims the AI assistant joins calls as an autonomous participant, transmits conversations to Otter’s servers for transcription, records even non-account holders, provides little or no participant notice, and shifts responsibility for consent onto meeting hosts. Plaintiffs further allege Otter retained recordings indefinitely and used captured communications to train its AI models, including voices of individuals who were unaware they were being recorded. The lawsuit asserts federal wiretap and computer-access violations, multiple California privacy law violations, and common-law claims for intrusion and conversion, casting AI notetakers not as neutral productivity tools but as unauthorized third-party surveillance operating inside private meetings.

AI meeting assistants offer numerous benefits, including allowing participants who would otherwise be taking notes to stay fully engaged, automatically generating meeting summaries and action items, producing uniform and unbiased notes for all participants, and even identifying speakers by their voices.  …

December 16, 2025

EPA Proposes to Scale Back WOTUS Definition

Pittsburgh, PA and Washington, DC

PIOGA Press

(by Lisa Bruderly and Ethan Johnson)

On November 17, 2025, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (the Corps) proposed a revised definition of “waters of the United States” (WOTUS) under the Clean Water Act (Proposed Rule). The Trump administration announced that the Proposed Rule would “provide greater regulatory certainty and increase Clean Water Act program predictability and consistency.”

The new definition is expected to reduce the number of streams and wetlands that are regulated under the Clean Water Act and will impact several federal regulatory programs, including Section 404 permitting of impacts to regulated waters. The agencies drafted the Proposed Rule to closely mirror the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, which held that the Clean Water Act extends to “relatively permanent” bodies of water connected to traditional navigable waters and wetlands with a “continuous surface connection” to those waters.

The Proposed Rule adds definitions for several terms, including “relatively permanent,” “tributary,” “continuous surface connection,” “prior converted cropland,” and “ditch.”

The public comment period will begin when the Proposed Rule is published in the Federal Register. If finalized, it will replace the Biden administration’s 2023 definition of WOTUS. The definition of WOTUS has changed several times in the last decade. Each new definition has been challenged in the courts.

Babst Calland will stay up to date on WOTUS developments and the Clean Water Act, in general. If you have any questions or would like any additional information, please contact Lisa Bruderly at (412) 394-6495 or lbruderly@babstcalland.com, or Ethan Johnson at (202) 853-3465 or ejohnson@babstcalland.com. …

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