In 1992, thе 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 appeаls, 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, 1 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 thе 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)
2
exceeded its authority under the CWA.
See Hoffman Homes, Inc. v. Adm’r, United States Envtl. Prot. Agency,
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,961 F.2d 1310 (7th Cir.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 “оn September 4, 1992, before the birds had reason to migrate south.”
United States v. Krilich,
*787
Nine months after the Consent Decree was agreed upon and final judgment entered, this court issued
Hoffman Homes II,
wherein we held that the BPA lacked jurisdiction over the wetlands at issue because the government had failed to present substantial evidence (under the “Migratory Bird Rule”) that migratory birds actually used the wetlands as a habitat.
See Hoffman Homes, Inc. v. Adm’r, United States Envt’l Prot. Agency,
On September 27, 1995, the government moved to enforce the Consent Decree, alleging that Krilich had failed to construct the replacement wetland by the date specified in the Consent Decree and that Kri-lich had violated the Decree by discharging fill material into an area known as W9, which the government contended was a “water of the United States.” The district court agreed with the government regarding Krilich’s failure to perform remediation and imposed civil penalties of $1,307,500.
See United States v. Krilich,
the land he allegedly filled was an “isolated intrastate wetland” which was beyond the federal government’s commerce power to regulate. Because Congress lacked authority to regulate his property, Krilich contended] that the district court lacked subject matter jurisdiction over the EPA’s complaint. And even though he agreed to the terms of the consent decree, which included a provision that the wetlands filled were “waters of the United States,” Krilich [argued] that this does not change the result because you can never consent to subject matter jurisdiction, and lack of jurisdiction can be raised at any time.
Krilich IV,
*788
Last year, nine months after we issued
Krilich IV,
the Supreme Court rendered a decision holding that 33 C.F.R. § 328.3(a)(3), as clarified by the Migratory Bird Rule, “exceeds the authority granted to [the Army Corps of Engineers] under § 404(a) of the CWA.”
Solid Waste Agency of Northern Cook Co. v. United States Army Corps of Engineers,
After SWANCC was issued by the Supreme Court, Krilich brought the present motion in federal district court, arguing that, under SWANCC, the waters affected by the Consent Decree are not subject to the EPA’s authority under the CWA. Therefore, Krilich reasoned, the execution and enforcement of the Consent Decree by the EPA is an ultra vires act and the Consent Decree was void ah initio. Kri-lich identified three bases for the district court’s authority to vacate or modify the Decree: the express reservation-of-jurisdiction clause contained in Paragraph 2 of the Consent Decrеe, the court’s inherent power to modify its judgments, and Rule 60(b)(5) in light of a change in the law, namely, the SWANCC decision. 5
In considering Krilich’s motion, the district court assumed that all of the waters at issue were nonnavigable, isolated wetlands that had no surface connection to the nearest stream or nearest navigable body of water.
6
Krilich V,
Krilieh appeals, claiming that the district court should have vacated or modified the Consent Decree under either Rule 60(b)(5) or the Consent Decree’s reservation-of-jurisdiction clause in Paragraph 2.
II. Analysis
A. Standard of Review
We review a denial of Rule 60(b)(5) relief for an abuse of discretion.
See Protectoseal Co. v. Barancik,
Although the defendants submitted a professional engineer’s expert report attempting to establish thаt all the wetlands subject to the Consent Decree are isolated, the district court did not conduct a hearing on that issue, nor did it reach a conclusion. Rather, it assumed that all waters at issue were nonnavigable, isolated wetlands with no surface connection to the nearest stream or nearest navigable body of water.
Krilieh V,
B. Grounds for Relief under Rule 60(b)(5)
A consеnt decree, while contractual in nature, is enforceable as “a judicial decree that is subject to the rules generally applicable to other judgments and decrees.”
Rufo v. Inmates of Suffolk Co. Jail,
In
Rufo,
the Supreme Court identified instances in which a significant change in law may have occurred. For example, the Court stated, a “consent decree must of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law. But modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent.”
Id.
at 388,
Krilich argues that Rule 60(b)(5) provides a basis to modify the Decree, and that the district court abused its discretion by denying him relief thereunder. Specifically, he contends that
SWANCC
represents a significant change in the law under the third clause of Rule 60(b)(5), thereby requiring the Consent Decree to be vacated, or at a minimum, modified prospectively. He argues that
SWANCC
establishes that the government never had authority to regulate the waters at issue and that “it is difficult to imagine a more relevant change in the law.” Aсcordingly, he reasons that
SWANCC
makes clear that the entry and continued enforcement of the Consent Decree are
ultra vires
acts by the EPA, requiring the Decree to be vacated.
See, e.g., Federal Crop Ins. Corp. v. Merrill,
Initially, Krilich argues that the district court improperly applied the
Rufo
test by reasoning that the parties were not operating under a
misunderstanding
of law and therefore that Krilich was not entitled to vacate the Consent Decree. He argues that the district court should instead have asked whether
SWANCC changed the law.
However, the district court did not improperly apply the
Rufo
test. The district court concluded that
SWANCC
was not a significant change in the law by reasoning that the Consent Decree was drafted in light of a law (as enunciated in
Hoffman Homes
I) that was as favorable to Krilich as was the later
SWANCC
decision. In essence, the district court was determining whether “the statutory or decisional law has changеd to make legal what the decree was designed to prevent.”
Rufo,
Krilieh also contends that the district court erred in relying upon the fact that the Consent Decree was drafted in light of
Hoffman Homes I,
because it had been vacated and was no longer the governing law of this circuit by the time the Decreе was entered. Therefore, he claims that we should analyze whether
SWANCC
represents a significant change in the law from the law
-pre-Hoffman Homes I,
wherein we had merely held “that Congress intended the Clean Water Act to regulate all the ‘navigable waters’ within its constitutional reach under the Commerce Clause.”
See 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,
Moreover, even if
SWANCC
is a significant change in the law from
Hoffman Homes
I — it is not a significant change that is relevant to this Consent Decree. There is nothing in the Consent Decree establishing that the Migratory Bird Rule was the sole basis for the EPA’s assertion of authority over Krilich’s property, and therefore
SWANCC
is not a relevant change in the law such that this Consent Decree should be modified. The defendants’ own “Motion to Bar Enforcement of Penalty,” filed with the district court in 1998 on remand to the district court from
*792
our decision in
Krilich II,
acknowledged that “Paragraph 1 of the Consent Decree recites that jurisdiction is based upon the Clean Water Act and other statutes. Paragraph 10 adopts the regulatory definition of wetlands. The Consent Decree does not rely upon the wetlands as a migratory bird habitat as a basis for Commerce Clause jurisdiction.” Instead, as the defendants аrgued in that motion, the government merely relied “upon its authority to define wetlands under the regulations.” As the district court noted when the defendants first attempted to challenge subject matter jurisdiction, “there is nothing in the Decree ... that makes it apparent that the mitigation plan may have been based solely on the filling of isolated wetlands. Neither was there any information indicating that those wetlands’ only possible connection to interstate commerce was their occasional use by migratory birds.”
Krilich III,
As the Consent Dеcree demonstrates, the parties were already operating on the premise that the Migratory Bird Rule did not authorize the EPA to regulate otherwise isolated wetlands, as that was our conclusion in Hoffman Homes I, which the parties expressly incorporated into Paragraph 20A of their agreement. In fact, Paragraph 20A carved out certain wetlands as beyond the EPA’s authority and exempted them from the reach of the Consent Decree’s requirements. But the parties also agreed that the EPA had authority to regulаte Krilich’s other wetlands. SWANCC in no way altered the other regulations interpreting “waters of the United States.”
If a party believes that the waters at issue on his own property are not properly subject to the EPA’s authority, whether under the rationale of
Hoffman Homes I, SWANCC
or under some other theory, he should not stipulate otherwise. But that is exactly what Krilich did, to his continued dismay. He expressly agreed that certain waters on his property constituted “waters of the United States,” subject to regulation by the EPA. Like most parties that enter into a settlement or plea agreement, he presumably made a tactical decision that the terms of the Consent Decree were more favorable than the costs or risks of continued litigation. Accordingly, we conclude that
SWANCC
effected no relevant change in decisional law such that the district court should have modified the Consent Decree. Nor does
SWANCC
establish that the EPA’s entry into and continued enforcement of the Consent Decree are
ultra vires
acts. “To hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the finality of such agreements and could serve as a disincentive to negotiation of settlements in ... litigation.”
Rufo,
C. Grounds for Relief under Reservation-of-Jurisdiction Clause
Krilich also argues that the district court had authority to vacate or modify the Decree under Paragraph 2, its reservation-of-jurisdiction clause. As previously noted, the reservation clause expressly provided: “The Court shall rеtain jurisdiction in order to enable any party to apply to the Court at any time for such further relief as may be necessary to interpret,
*793
enforce, or modify this Decree.” In analyzing Krilich’s argument, the district court concluded that it could not interpret this clause outside the bounds of Rule 60(b).
Krilich V,
III. Conclusion
Krilich voluntarily entered into the Consent Decree with the government, agreeing to resolve their dispute without recourse to further litigation. At that time, the parties were operating under the Hoffman Homes I view of the law. The Supreme Court’s later decision in SWANCC did not alter the parties’ reliance on Hoffman Homes I that the EPA could not regulate isolated intrastate wetlands. Therefore, the subsequent release of the SWANCC decision does not justify vacating the Consent Decree. The SWANCC decision does not establish that the Government exceeded its authority in entering into the Consent Decree, so Krilich’s claim that the Decree was void ab initio fails as well. For these and the foregoing reasons, we AFFIRM.
Notes
. The government filed suit against Robert Krilich individually and several corporations which he controlled. Throughout this opinion, we simply refer to "Krilich” or the "defendants”.
. 40 C.F.R. § 230.3(s)(3), the EPA regulation that defines “waters of the United States,” is identical to the Army Corps of Engineers regulation, 33 C.F.R. § 328.3(a)(3), also defining the phrase. As noted, infra, both are referenced in Paragraph 10 of the Consent Decree.
. The Migratory Bird Rule was intended to clarify the scope of 33 C.F.R. 328.3(a)(3), and provided that "waters of the United States ... also include the following waters: a. Which are or would be used as habitat by birds protected by Migratory Bird Treaties; or b. Which are or would be used as habitat by other migratory birds which cross state lines ....” 51 Fed.Reg. 41217 (1986).
. Paragraph 2 of the Consent Decree provides: "The Court shall retain jurisdiction in order to enable any party to apply to the Court at any time for such further relief as may be necessary to interpret, enforce, or modify this Decree.”
. Even though Krilich brought the action under the Consent Decree’s express reservation-of-jurisdiction clause and under the court’s inherent authority, and only alternatively under Rule 60(b)(5), the court treated his motion as one under Rule 60(b).
United States v. Krilich,
. The defendants submitted an expert report of Gary C. Schaefer, P.E. in support of their motion, contending that all the waters at issue under the Consent Decree were isolated.
.The court analyzed Krilich's motion under Rule 60(b)(4), which provides for relief if the judgment is void, and determined that the fact that a party to a consent judgment lacked authority to consent does not void the judgment itself.
Krilich V,
. Rule 60(b)(5) provides, in part, that a judgment may be modified if "it is no longer equitable that the judgment should have prospective application.” Fed.R.Civ.P. 60(b)(5).
. Because we conclude that Krilich did not meet his burden of establishing a change in law warranting modification of the Consent Decree, we need not reach the question whether the proposed modification is suitably tailored to the changed circumstance.
Rufo,