The opinion of the court was delivered by: CONLON
MEMORANDUM OPINION AND ORDER
The United States of America sues Hallmark Construction Company ("Hallmark") for allegedly filling a five-acre isolated wetland ("Area B") without obtaining a permit under Section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344. The government seeks restoration of Area B and/or mitigation to address the loss of wetland area. On July 23, 1998, the court granted summary judgment in part because the United States was not a proper plaintiff. The United States moves for reconsideration of the July 23 judgment.
The following facts are undisputed unless otherwise noted. Hallmark is an Illinois corporation in the business of developing property. Def. 12(M) P 2. In 1988, Hallmark purchased the former Swift Research Farm in Frankfort, Illinois and began developing the Heritage Knolls subdivision. Id. P 26.
Area B was a natural topographical depression in the middle of the farm. Id. PP 2, 11. The farm contained underground clay tiles for drainage. The parties dispute the extent to which the underground tiles successfully drained Area B in the years before development. See, e.g., Def. 12(M) and Pl. 12(N) PP 8, 13, 14, 15, 19. The United States points to historical aerial photographs as evidence of inundation and saturation in Area B. John Kestel, the person who farmed the land purchased by Hallmark, states that Area B was never ponded over for more than four consecutive days. Hallmark points to computer modeling evidence suggesting that Area B could not have been inundated for 15 or more consecutive days during the growing season. Def. 12(M) P 65.
Hallmark did not begin development in Area B until 1989. Def. 12(M) P 27. The parties dispute whether Area B provided substantial habitat, nesting, feeding, or other value to migratory birds different from that provided by the surrounding farm fields. See Def. 12(M) and Pl. 12(N) P 25. But it is undisputed that John Kestel saw geese in his fields, including Area B. Today, Area B contains an artificial five-acre stormwater detention/retention pond, roads, and several homes. Def. 12(M) P 40. Although the present stormwater detention area stores more water than Area B stored prior to development, the parties dispute whether the quality of the water has improved and whether it provides a better or worse habitat for migratory birds. Id. P 46; Pl. 12(N) PP 24 - 25, 46.
In 1990 - after development began - Hallmark's civil engineer recommended that Hallmark hire Planning Resources, Inc. to inspect Heritage Knolls for the presence of wetlands. Id. P 28. Planning Resources inspected Heritage Knolls in accordance with the 1989 Federal Manual For Identifying and Delineating Jurisdictional Wetlands ("1989 Manual") and prepared a report.
Id. P 29. Although other areas of the farm had standing water during the inspection, Area B was neither saturated nor inundated. Id. P 32.
Nonetheless, Planning Resources concluded Area B was a "seasonally flooded farmed wetland" based on the presence of a flotsam ring (or drift lines), hydrophytic vegetation, and hydric soils. Pl. 12(N) PP 34, 35. A flotsam ring is created by dead or drowned vegetative debris deposited in a circular pattern where temporary inundation has occurred and receded.
In August 1990, Hallmark submitted Planning Resources' report to the United States Army Corps of Engineers ("the Corps"). Id. P 29. The Corps requested that Hallmark fill out an "after-the-fact" permit application and provide a mitigation plan to address the loss of wetland area. Over the course of more than five years, the Corps repeatedly requested (and eventually demanded) that Hallmark provide an adequate mitigation plan. In April 1994, Hallmark retained SDI Consultants, Ltd. ("SDI") to write a proposal for a mitigation plan. Id. P 53. SDI reviewed all available historical data about Area B and concluded that it had not been a farmed wetland after all. SDI concluded development of Area B did not require mitigation because it was "prior converted cropland" lacking wetland hydrology. Id. P 56.
The Corps asked the National Resources Conservation Service ("the Conservation Service") to determine whether wetlands previously existed on Heritage Knolls. The Conservation Service's wetland map, prepared in 1987 or 1988, designates approximately five acres of Area B as wetland. The Conservation Service makes wetland determinations based on examination of aerial photographs and other historical data. Def. 12(M) P 61; Pl. 12(N) P 61. The parties dispute whether aerial photographs from 1964, 1970, 1976 and 1980 and crop compliance photographs from 1980, 1982, 1984, 1986 and 1988 show evidence of inundation of Area B. Id. P 64.
After attempts to resolve the dispute proved unsuccessful, the Corps referred the matter to the United States Attorney; this suit was filed in May 1997. The Corps never consulted with the Environmental Protection Agency regarding Area B or its decision to refer this case the United States Attorney for civil enforcement. Id. P 67.
Motions for reconsideration serve a limited purpose. On reconsideration, a party may not introduce new evidence or legal theories that could have been presented earlier. Caisse Nationale de Credit Agricole v. CBI Industries, Inc., 90 F.3d 1264, 1269 (7th Cir. 1996). Nevertheless, a motion to reconsider may be proper to correct manifest errors of law or to present newly discovered evidence. In the Matter of Prince, 85 F.3d 314, 324 (7th Cir. 1996), cert. denied, 519 U.S. 1040, 136 L. Ed. 2d 534, 117 S. Ct. 608 (1996). Ultimately, a district court may grant a motion to reconsider so long as the court does not abuse its discretion. Id.
The court determines this motion on an argument raised by the United States in its summary judgment response. As Hallmark concedes, the United States' motion for reconsideration "reiterates its argument that the Corps really does have CWA authority for permitless discharges." Mem. at 3. The United States' reiteration and clarification of its prior argument does not constitute a new legal theory. Moreover, upon reconsideration of the argument, the court recognizes an error of law in its prior order. Thus, this motion is properly before the court.
In its July 23, 1998 summary judgment order, this court found the United States was not a proper party plaintiff because the Corps had no authority under section 404 of the CWA to commence a civil action for a permitless discharge. The court further found the Environmental Protection Agency's delegation of this authority to the Corps unconstitutional because only Congress could delegate this enforcement authority. Upon reconsideration of section 404 and the governing case law, the court reconsiders its prior position. ...