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UNITED STATES v. KRILICH

May 31, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT R. KRILICH, KRILICH COMPANIES, INC., RIVERWOODS DEVELOPMENT CORP., LAKEMOOR CLUB, INC., AUSTIN STATE BANK TRUST, etc., and MANUFACTURERS AFFILIATED TRUST CO., etc., Defendants.



The opinion of the court was delivered by: HART

MEMORANDUM OPINION AND ORDER

 Defendants in this case are Robert Krilich and various corporations that he controls. Plaintiff United States alleged that defendants, in violation of the Clean Water Act, filled wetlands at two sites they owned in the Chicago area. Prior to the filing of this case in August 1992, the parties had agreed to a proposed consent decree. Following a comment period and the filing of motions with the court, the proposed consent decree, as modified, (the "Decree") was entered on October 29, 1992. Now pending is the government's motion to enforce the Decree. The government seeks to impose monetary penalties under the Decree for (a) defendants' alleged failure to comply with Decree deadlines for creating a 3.10 acre wetland on the Royce Renaissance Property and (b) defendants' post-Decree conduct of discharging fill in an area known as W9, which the government contends is defined as a water of the United States under the Decree.

 I. W9 WETLAND

 The Decree provides in part:

 
The Defendants shall continue to treat wetland and open water areas depicted on Exhibit 1 as waters of the United States until the mandate issues in Hoffman Homes, Inc. v. EPA, [961 F.2d 1310] (7th Cir. April 20, 1992) ["Hoffman I"] and until proceedings related to any appeal, petition for certiorari, or remand are completed. Following completion of these proceedings, unless pertinent portions of the Seventh Circuit's April 20, 1992 decision are reversed, Exhibit 1 areas W2A, W2B, W3, W5B, and W9 shall be excluded from the obligations imposed in Paragraph 17.

 Decree P 20A.

 The EPA petitioned for rehearing following Hoffman I and the Seventh Circuit granted that motion, vacating Hoffman I. See Hoffman Homes, Inc. v. Administrator, United States EPA, 975 F.2d 1554 (7th Cir. Sept. 4, 1992). Following unsuccessful attempts at mediation, the Seventh Circuit issued a new opinion reaching the same result as Hoffman I, but on different grounds. See Hoffman Homes, Inc. v. Administrator, United States EPA, 999 F.2d 256 (7th Cir. July 19, 1993) ("Hoffman II"). No petition for certiorari was filed and there was no remand, nor further request for rehearing. Although P 20A of the Decree refers to issuance of a mandate, mandates do not issue in cases involving direct administrative review, judgments are entered. *fn1" See Fed. R. App. P. 19, 36. The Seventh Circuit does send "closing orders" to the agency that are similar to mandates. The closing order in Hoffman was issued on August 10, 1993, a few weeks after the Hoffman II opinion. In light of P 20A's reference to a mandate for Hoffman I marking the completion of that proceeding, the issuance of the closing order following Hoffman II apparently would mark the completion of "these proceedings." *fn2" It is undisputed that W9 was filled from July 18, 1994 until removal of the fill was completed as of December 28, 1994. Joint Stipulation of Uncontested Facts ("Stip. Facts") P 31. Under any construction of P 20A of the Decree, the filling occurred after the completion of proceedings in the Hoffman case. Therefore, filling W9 can only be a violation of the Decree if "pertinent portions" of Hoffman I were "reversed."

 As stated in Hoffman I, the relevant facts in that case were as follows:

 Hoffman I, 961 F.2d at 1311.

 The parties agree that, as of 1990, W9 had standing water and little vegetation and that waterfowl had been observed using the area on each of four dates it was visited by EPA officials. Stip. Facts P 19. It is also agreed that W9 "was an isolated area, not connected hydrologically to any other surface water area [and] not adjacent to any other surface water." Id. PP 22-23. The parties agree that, as of the time the Decree was signed, Hoffman I "arguably would not have permitted area W9 to be treated as a wetland." Stip. Facts P 25.

 The Clean Water Act requires a permit from the Secretary of the Army in order to discharge fill into "navigable waters." 33 U.S.C. § 1344(a). The Clean Water Act defines navigable waters as "the waters of the United States, including the territorial seas." Id. § 1362(7). Regulations of the EPA and Army Corps of Engineers define waters of the United States as including three types of wetlands: (a) interstate wetlands, (b) wetlands adjacent to other waters of the United States, and (c) intrastate wetlands whose use or misuse could affect interstate commerce. 40 C.F.R. § 230.3(s); 33 C.F.R. § 328.3(a); Hoffman II, 999 F.2d at 260. See also Hoffman I, 961 F.2d at 1312-13. Pertinent to this case and the Hoffman case, see Hoffman I, 961 F.2d at 1314 ("This case involves non-adjacent, or isolated, wetlands."), is the third type of wetland.

 
(3) All other waters such as 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 including any such waters:
 
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
 
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
 
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce.

 40 C.F.R. § 230.3(s)(3).

 Hoffman I holds that the EPA's definition of navigable waters as including isolated wetlands is unenforceable because inconsistent with the Clean Water Act. Id. at 1316. "Isolated wetlands, unlike adjacent wetlands, have no hydrological connection to any body of water. Thus, isolated wetlands, like Area A, are not part of an aquatic ecosystem and do not control floods or pollution in other bodies of water. Protection of isolated wetlands, therefore, would not further the objective of the Clean Water Act 'to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.'" Id. at 1314.

 Hoffman I went on to hold in the alternative that, even if the regulation was consistent with the Clean Water Act, such a provision could not be constitutionally enforced because it was beyond the powers of Congress under the Commerce Clause. Id. at 1316-21. The EPA argued that Area A was not beyond the regulatory limits of the Commerce Clause ...


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