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United States v. Krilich

ELR Citation: 30 ELR 20533
Nos. Nos. 99-2271, -2397, 209 F.3d 968/50 ERC 1477/(7th Cir., 04/12/2000) Motion to bar enforcement of penalties

The court denies a developer's motion to bar the enforcement of penalties imposed against him for illegally filling wetlands without a permit. After being civilly charged with illegally filling a wetland in violation of Clean Water Act (CWA) §301(a), the developer entered into a consent decree with the U.S. Environmental Protection Agency (EPA), the terms of which required the developer to either create a substitute wetland by a specific date or pay a penalty. The developer failed to complete the wetland by the specific date, and EPA moved to enforce the penalty provision of the consent decree. A district court granted EPA's motion, and the developer filed a motion to vacate the judgment as void for lack of subject matter jurisdiction.

The court first holds that the district court had subject matter jurisdiction over EPA's cases against the developer because the suit civilly charged a violation of a federal statute that is within the federal court's federal question jurisdiction. The developer cannot now argue that the wetlands involved were not waters of the United States subject to the CWA because the developer entered into a consent decree stipulating that the wetlands involved were waters of the United States. Moreover, the "waters of the United States" requirement is merely an element of the alleged CWA violation and not the basis for federal subject matter jurisdiction. Even if the government failed to establish that the wetlands involved were waters of the United States, the district court would still have jurisdiction over the case under 28 U.S.C. §1331.

[Prior decisions in this litigation are published at 27 ELR 20663 and 28 ELR 20201.]

Counsel for Plaintiff
James J. Kubik, Ass't U.S. Attorney
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

Counsel for Defendants
Raymond T. Reott
Jenner & Block
One IBM Plaza, Chicago IL 60611
(312) 222-9350

Before Coffey and Evans, JJ.