Regulators with the U.S. Army Corps of Engineers (COE) traditionally have explained their agency's role in protecting the nation's waterways by saying it had authority over "anything bigger than a duck's butt." The reference was to a COE rule extending its permitting power, granted by Congress through the Clean Water Act, to any body of water used by migratory birds. If a duck could land on it, the agency had declared, then a COE permit was needed before it could be filled or drained. Earlier this year, the U.S. Supreme Court overturned the "duck's butt" standard, saying isolated ponds and wetlands not attached to navigable waters of the United States were beyond the COE's permitting authority (see CP&DR Legal Digest, February 2001). At first glance, the ruling appears to be a victory for builders and landowners who had chafed under the restriction. Closer examination suggests, however, that they may have lost more than they gained. The 1972 Clean Water Act and its amendments establish legislative protection for the nation's "navigable waters" — defined vaguely as "the waters of the United States, including the territorial seas." Under Section 404 of the Act, a COE permit is required before the "discharge of dredged or fill material" into those waters. COE regulations implementing the Act's provisions defined those waters to include "intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce." In 1986, the agency further clarified its reach by saying its Section 404 authority extended to any waters "which are or could be used as habitat" by endangered species, birds protected under migratory bird treaties, or other migratory birds that cross state lines. The agency also took jurisdiction over waters used to irrigate crops sold in interstate commerce. This expansive interpretation of congressional intent gave the federal agency authority over virtually every puddle, including flooded road ruts, seasonal ponds and vernal pools. Critics saw it as an intrusion of federal power into an arena more properly left to state and local authorities. These opponents got their chance to challenge the COE's sweeping interpretation when the agency denied a permit for a suburban Chicago landfill. The Solid Waste Agency of Northern Cook County (SWANCC) had proposed developing a regional landfill on the 533-acre site of a former sand and gravel mine. Abandoned since 1960, the pits and trenches had become filled with water, which attracted migrating birds. The SWANCC planned to fill 17 acres of the flooded pits, and so applied to the COE for a Section 404 permit. Initially, the COE decided it lacked jurisdiction. It reconsidered, however, later determining that use of the ponds by migratory birds provided a rationale for Section 404 authority. The agency eventually denied the permit, ruling that the applicants had not fully examined less environmentally damaging alternatives. SWANCC filed suit in federal court challenging COE's jurisdiction. The solid waste agency lost in 1998 in the Chicago district court, and lost an appeal in 1999. It appealed that decision to the U.S. Supreme Court, which ruled on January 9 that the COE had overstepped its authority (Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 99-1178). In a 5-4 ruling, the court's conservative majority declared that Congress had not intended to give the COE authority over isolated intrastate waters simply because they are used by migratory birds. Doing so, Chief Justice William Rehnquist wrote, "would result in a significant impingement of the state's traditional and primary power over land and water use." In dissent, Justice John Paul Stevens decried the majority's interpretation of the Clean Water Act as "miserly" and said the decision "needlessly weakens our principal safeguard against toxic water." Environmentalists agreed, condemning the ruling and saying it removed protection from as much as a quarter of the nation's waterways. Property-rights groups and business organizations, on the other hand, applauded. That enthusiasm may have been premature. The ruling did not affect the COE's Section 404 permitting authority over the vast majority of the nation's waters. As noted in a January 22 memo by Gary S. Guzy, general counsel for the U.S. Environmental Protection Agency, and Robert M. Anderson, chief counsel for the COE, the ruling left open the possibility that even isolated intrastate wetlands might fall under COE jurisdiction if some other connection with interstate commerce could be demonstrated. The ruling, they wrote, also did not preclude COE involvement in cases where use, degradation or destruction of isolated, intrastate and nonnavigable waters could affect other "waters of the United States." More significantly, though, the ruling deprived landowners of a useful tool for negotiating compliance with other federal regulations. Thanks to the widespread destruction of the nation's wetlands — more than half have been filled or drained nationally since the 19th century, with the loss estimated as high as 90% in California — those that remain have become enormously important to wildlife, especially endangered species. Although developers and farmers regarded as particularly annoying the COE's assertion of authority over ephemeral wetlands and seasonal ponds, the Section 404 permitting process actually represented a straightforward means of dealing with the likelihood that any body of water might harbor a protected species. Section 404 permits typically allowed applicants to negotiate conservation agreements for listed species with the COE, which had worked out a streamlined consultation process with the U.S. Fish & Wildlife Service under Section 7 of the Endangered Species Act. Landowners planning to fill or drain isolated wetlands will still have to conduct detailed studies of their property to ensure that the water in question falls outside COE scope, as well as to comply with the California Environmental Quality Act, the California Coastal Act, and the state Fish and Game Code — all of which protect wetlands and waterways in some fashion. In addition, they will have to apply to USFWS for an incidental take permit under Section 10 of the Endangered Species Act if the wetland they plan to alter harbors a listed species. That process is more complicated, takes longer (a year or more, compared with 30 to 60 days in a Section 7 process) and is fraught with greater uncertainty than the Section 7 process. In short, the "victory" at the Supreme Court may turn out to be a hollow one for many landowners, particularly in California. It may no longer matter whether a puddle is big enough to accommodate a duck's butt. But landowners will have even greater reason to worry that the puddle might harbor a fairy shrimp, red-legged frog or pupfish. Contacts: U.S. Army Corps of Engineers, South Pacific Division: 415-977-8004 U.S. Fish & Wildlife Service, Sacramento office: 916-414-6464 USFWS "Report to Congress on the Status and Trends of Wetlands in the Conterminous United States 1986 to 1997": http://wetlands.fws.gov/bha/SandT/SandTReport.html