01-2746 U.S. v. Krilich

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“Notwithstanding the vacation of Hoffman Homes I, the parties agreed to incorporate its interpretation of the law into the Consent Decree and Krilich benefited from that decision. Under these circumstances, it would not be equitable to compare a change in the law pre-Hoffman Homes I to SWANCC. Rather, under Rule 60(b)(5), we must determine whether the law has changed significantly enough such that it would be equitable to modify this Consent Decree that itself incorporated the legal standards set out in Hoffman Homes I.

“That brings us to the heart of Krilich’s argument: that SWANCC eliminated the EPA’s authority to regulate the wetlands at issue because they are nonnavigable, isolated, intrastate waters. Unfortunately for him, he already agreed that the waters were ‘waters of the United States.’ To get around his stipulation, he contends that the holding in Hoffman Homes I is narrower than SWANCC, and therefore SWANCC does constitute a significant change in law under Rufo justifying modification of the Decree. He argues that, in SWANCC, the Supreme Court removed from the Corps’ regulatory authority all waters that are not adjacent to bodies of open water, SWANCC, 531 U.S. at 168, whereas in Hoffman Homes I, the court defined isolated wetlands as those that ‘have no hydrological connection to any body of water.’ 961 F.2d at 1314. But the precise holding of SWANCC was not so broad. While reaffirming its prior holding that Section 404 encompassed non-navigable wetlands adjacent to navigable waters, 531 U.S. at 167-68 (citing United States v. Riverside Bayview Homes Inc., 474 U.S. 121 (1985)), the Court explicitly declined to further determine the exact meaning of “navigable waters.” SWANCC, 531 U.S. at 171. And, it declined to reach any constitutional question. Id. at 174. Rather, in SWANCC, the Supreme Court merely held that the definition of ‘waters of the United States’ under 33 C.F.R. sec. 328.3(a)(3), as clarified by the Migratory Bird Rule, ‘exceeds the authority granted to [the Corp] under sec. 404(a) of the CWA.’ Id. This limited holding does not represent a significant change in the law such that it would be equitable to modify or vacate the Consent Decree.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Hart, J., Manion, J.