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United States v. Krilich

ELR Citation: 31 ELR 20787
Nos. 92 C 5354, 152 F. Supp. 2d 983/(N.D. Ill., 06/22/2001) Consent decree aff'd

The court denies individuals' motion to vacate a consent decree entered into with the United States regarding Clean Water Act (CWA) violations involving wetlands in an area being developed by the individuals. The individuals argued that the consent decree should be vacated because in light of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159, 31 ELR 20382 (2001), it is clear that one of the properties involved in the decree did not contain navigable waters subject to regulation under the CWA, and, therefore, the United States did not have authority to regulate the waters or enter the decree, making the decree an ultra vires act. The court first holds that the government's actions, however, were not ultra vires and the consent decree should not be vacated. Even if the government went beyond its authorities in entering the consent decree, it is not a basis to void the decree because it does not go to the court's subject matter jurisdiction. The court next holds that the individuals are bound by their stipulation in the consent decree that the wetlands were waters of the United States, and it is now too late to contend that the parties were mistaken as to the wetlands being waters of the United States. The court further holds that another property controlled by the consent decree contains wetlands subject to CWA regulation, and, therefore, the government did not exceed its authority by entering the decree. The court finally holds that the change of law represented by SWANCC does not warrant modification of the consent decree.

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

Hart, J.