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United States v. Krilich

September 09, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ROBERT R. KRILICH, KRILICH COMPANIES, INC., RIVERWOODS DEVELOPMENT CORP., ET AL., DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 5354--William T. Hart, Judge.

Before Coffey, Manion, and Evans, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge

ARGUED MAY 14, 2002

In 1992, the EPA sued Robert Krilich and several corporations he controlled, alleging violations of the Clean Water Act. The parties entered into a Consent Decree resolving the case. However, after the Supreme Court held that the Army Corps of Engineers exceeded its authority in extending the definition of "navigable waters" under the Clean Water Act to include intrastate waters used by migratory birds, Krilich moved the district court to vacate the Consent Decree. The district court refused to do so. Krilich appeals, and we affirm.

I. Factual and Legal Background

On August 7, 1992, the United States Environmental Protection Agency ("EPA") filed a civil complaint against the defendants, *fn1 alleging that they violated the Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"). The government alleged that Krilich violated Section 301 of the CWA by discharging fill material without a permit into wetlands on two Illinois sites that he was developing: the Royce Renaissance site in Oakbrook, Illinois and the Sullivan Lake site in Lakemoor, Illinois. Section 301(a) prohibits the "discharge of any pollutant," except as otherwise authorized by the CWA. 33 U.S.C. § 1311(a). Section 404 of the CWA authorizes the Secretary to issue a permit approving "the discharge of dredged or fill material into the navigable waters." 33 U.S.C. § 1344(a). "Navigable waters" are defined as "waters of the United States." 33 U.S.C. § 1362(7). "Waters of the United States" are further defined by regulations promulgated under the CWA. 33 C.F.R. § 323.2(a). See generally 33 C.F.R. Pt. 328. Section 328.3(a)(3) further defines "waters of the United States" to include "[a]ll 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." 33 C.F.R. § 328.3(a)(3).

While the suit was pending and the parties were negotiating, this court issued a decision holding that the EPA's construction of "waters of the United States" as including intrastate, nonadjacent or "isolated" wetlands under 40 C.F.R. § 230.3(s)(3) *fn2 exceeded its authority under the CWA. See Hoffman Homes, Inc. v. Adm'r, United States Envtl. Prot. Agency, 961 F.2d 1310, 1316 (7th Cir. 1992) ("Hoffman Homes I"), vacated by 975 F.2d 1554 (7th Cir. 1992). In Hoffman Homes I, this court further held that, even if the regulation was reasonable under the CWA, Congress lacked authority under the Commerce Clause to regulate such waters based simply on the actual or potential use of such waters by migratory birds. *fn3 Id. at 1321. Following Hoffman Homes I, Krilich and the EPA drafted a Consent Decree to settle their dispute. The Consent Decree acknowledged the potential impact of the Hoffman Homes I decision by incorporating the following provisions:

IV. DEFINITIONS

10. Except as specifically modified herein, the terms "waters of the United States"; "wetlands"; "dredged material"; "fill material"; "discharge of dredged material"; and "discharge of fill material" shall have the meanings assigned them at 40 C.F.R. § 230.3 or 33 C.F.R. § 323.2. "EPA" means the United States Environmental Protection Agency, and "Corps" means the United States Army Corps of Engineers.

V. WATERS OF THE UNITED STATES

17. For purposes of this Consent Decree, the parties shall treat wetland and open water areas depicted on Exhibit 1, together with the new wetland and open water area created pursuant to Part VII (injunctive relief) and depicted on Exhibit 2, as waters of the United States located on the Royce Renaissance Property.

20A. 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, No. 90-3810 (7th Cir. April 20, 1992) 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.

Thus, the parties expressly excluded some waters on the defendant's property and agreed to treat the rest of the waters as "waters of the United States."

Before the parties approved the final Consent Decree, Hoffman Homes I was vacated "on September 4, 1992, before the birds had reason to migrate south." United States v. Krilich, 209 F.3d 968, 970 (7th Cir. 2000) ("Krilich IV"). Thereafter, the parties signed the Consent Decree, incorporating the Hoffman Homes I language, notwithstanding the fact that it had been vacated. The Consent Decree required the defendants to undertake certain remediation and mitigation activities and to pay fines for filling wetlands. On October 29, ...


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