                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


UNITED STATES   OF   AMERICA,              
                     Plaintiff-Appellee,
                     v.
INTERSTATE GENERAL COMPANY, L.P.;
ST. CHARLES ASSOCIATES, LTD., A
PARTNERSHIP,
             Defendants-Appellants,
                 and
JAMES J. WILSON,                                 No. 01-4513
                            Defendant.
PACIFIC LEGAL FOUNDATION;
FOUNDATION FOR ENVIRONMENTAL AND
ECONOMIC PROGRESS, INCORPORATED;
THE STATE OF MARYLAND,
DEPARTMENT OF THE ENVIRONMENT;
ANACOSTIA RIVERKEEPER; CHESAPEAKE
BAY FOUNDATION, INCORPORATED,
                     Amici Curiae.
                                           
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
             Alexander Williams, Jr., District Judge.
                    (CR-95-390, CA-96-1112)

                          Argued: May 6, 2002

                          Decided: July 2, 2002

  Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.
2             UNITED STATES v. INTERSTATE GENERAL CO.
Affirmed by unpublished per curiam opinion.


                             COUNSEL

ARGUED: Alfred Henry Moses, COVINGTON & BURLING,
Washington, D.C., for Appellants. William Warren Hamel, Assistant
United States Attorney, Baltimore, Maryland, for Appellee. ON
BRIEF: Emily Johnson Henn, COVINGTON & BURLING, Wash-
ington, D.C., for Appellants. Thomas M. DiBiagio, United States
Attorney, James C. Howard, Assistant United States Attorney, Balti-
more, Maryland; John Cruden, Acting Assistant Attorney General,
Katherine W. Hazard, Environment & Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. M. Reed Hopper, Robin L. Rivett, PACIFIC
LEGAL FOUNDATION, Sacramento, California, for Amicus Curiae
Pacific Legal Foundation. Virginia S. Albrecht, Stephen M. Nickels-
burg, HUNTON & WILLIAMS, Washington, D.C.; Michael R. She-
belskie, HUNTON & WILLIAMS, Richmond, Virginia, for Amicus
Curiae Foundation for Environmental and Ecomonic Progress. J.
Joseph Curran, Jr., Attorney General of Maryland, Stephanie Cobb
Williams, Assistant Attorney General, Adam D. Snyder, Assistant
Attorney General, Baltimore, Maryland, for Amicus Curiae State of
Maryland. Roger C. Wolf, UNIVERSITY OF MARYLAND ENVI-
RONMENTAL LEGAL CLINIC, Baltimore, Maryland, for Amicus
Curiae Anacostia Riverkeeper. Roy A. Hoagland, THE CHESA-
PEAKE BAY FOUNDATION, INC., Annapolis, Maryland, for
Amicus Curiae Chesapeake Bay Foundation.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   In 1999 Interstate General Co., L.P. (IGC) pled guilty to one count
of knowingly discharging fill materials into protected wetlands in vio-
               UNITED STATES v. INTERSTATE GENERAL CO.                  3
lation of the Clean Water Act, 33 U.S.C. §§ 1311(a) & 1319(c)(2)(A),
and entered into a consent decree with the United States. The consent
decree, among other things, required IGC to implement a remediation
plan for the disturbed wetlands. In January 2001 the Supreme Court
decided Solid Waste Agency of Northern Cook County v. United
States Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC),
which limited the scope of the Clean Water Act. Soon after, IGC filed
a petition for writ of error coram nobis and a motion to vacate the
consent decree under Fed. R. Civ. P. 60(b)(5), arguing that SWANCC
legalized the conduct underlying the criminal conviction and the con-
sent decree. Concluding that SWANCC did not change the decisional
law applicable to this case, the district court rejected both the petition
for writ of error coram nobis and the motion to vacate. We agree with
the district court and therefore affirm its order.

                                    I.

   In September 1995 the United States began parallel criminal and
civil proceedings against IGC, St. Charles Associates, L.P. (SCA),
and James J. Wilson, the chief executive officer of both companies.
IGC is a publicly traded land development company. IGC is also the
general partner of SCA, a limited partnership that owns land under
development in St. Charles, Maryland. The defendants were charged
with violating the Clean Water Act by discharging fill material onto
four parcels of wetlands in St. Charles without a permit from the
United States Army Corps of Engineers (the Corps).

   Section 404(a) of the Clean Water Act authorizes the Corps to reg-
ulate the discharge of fill materials into "navigable waters." 33 U.S.C.
§ 1344(a) (2001). The Act defines "navigable waters" as "the waters
of the United States." 33 U.S.C. § 1362(7) (2001). The Corps has
issued regulations defining "waters of the United States" to include

       (1) All waters which are currently used, or were used in
     the past, or may be susceptible to use in interstate or foreign
     commerce, including all waters which are subject to the ebb
     and flow of the tide;

       (2) All interstate waters including interstate wetlands;
4                UNITED STATES v. INTERSTATE GENERAL CO.
           (3) All 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 . . .;

          (4) All impoundments of waters otherwise defined as
        waters of the United States under the definition;

           (5) Tributaries of waters identified in paragraphs (a)(1)
        through (4) of this section;

          (6) The territorial seas;

           (7) Wetlands adjacent to waters (other than waters that
        are themselves wetlands) identified in paragraphs (a)(1)
        through (6) of this section.

33 C.F.R. § 328.3(a) (2001). The wetlands at issue here are adjacent
to the headwaters of small streams that flow into Port Tobacco Creek,
Piney Branch, or Mattawoman Creek. These waters in turn flow into
the Potomac River and ultimately the Chesapeake Bay. The Chesa-
peake Bay is navigable. In short, the wetlands are adjacent to tribu-
taries of traditional navigable waters.1

   In February 1996 a jury convicted the defendants on four felony
counts of knowingly discharging fill material into wetlands protected
by the Clean Water Act. Wilson received a 21-month prison term and
a $1 million fine. IGC was fined $2 million and placed on five years
probation, and SCA was fined $1 million and placed on five years
probation. The defendants were also ordered to implement a wetlands
restoration plan.

  This court subsequently reversed the convictions and remanded the
matter for a new trial. See United States v. Wilson, 133 F.3d 251 (4th
    1
   To avoid confusion between the statutory term "navigable waters" as
defined in the Clean Water Act and the traditional use of the term to indi-
cate waters that may be used in commerce, we refer to the latter as "tradi-
tional navigable waters."
               UNITED STATES v. INTERSTATE GENERAL CO.                  5
Cir. 1997). The problem was that the district court, in instructing the
jury, had relied on 33 C.F.R. § 328.3(a)(3) as a possible basis for the
Corps’s jurisdiction. We concluded that the Corps had exceeded its
congressional authorization under the Clean Water Act in promulgat-
ing § 328.3(a)(3). Consequently, we held that § 328.3(a)(3) was
invalid and that the district court’s instruction based on that regulation
was erroneous. Id. at 256-57.

   After remand the parties settled both the criminal and civil aspects
of the controversy. IGC pled guilty to a single felony count and paid
a $1.5 million fine. The parties also signed a consent decree, which
required IGC to pay a civil penalty of $400,000 and to implement a
wetland remediation plan. In return, the government dismissed all
charges against Wilson and SCA. The district court sentenced IGC
and entered the consent decree on November 22, 1999. After the
Supreme Court decided SWANCC, IGC filed a petition for a writ of
error coram nobis and a motion to vacate the consent decree under
Fed. R. Civ. P. 60(b)(5). The district court denied both applications
on June 12, 2001, and IGC appealed.

                                   II.

   Neither the writ of error coram nobis nor the motion to vacate is
warranted unless there has been a fundamental or significant change
in the law governing this case. IGC contends that such a change has
occurred because SWANCC eliminated the federal government’s
jurisdiction over the St. Charles wetlands. As a result, IGC claims that
it did not violate the Clean Water Act by filling in those wetlands. We
disagree because SWANCC deals with a provision of the regulation,
33 C.F.R. § 328.3(a)(3), that the government did not use to assert
jurisdiction for the plea agreement or the consent decree.

   Federal courts have the power under the All-Writs Act, 28 U.S.C.
§ 1651(a), to grant a writ of error coram nobis vacating a conviction
after a sentence has been served. United States v. Morgan, 346 U.S.
502 (1954). But this extraordinary relief should be granted only if an
error "of the most fundamental character" has occurred, and no other
remedy is available. United States v. Mandel, 862 F.2d 1067, 1075
(4th Cir. 1988). While historically this common law writ was used to
correct fundamental errors of fact, Mandel recognized that the writ
6              UNITED STATES v. INTERSTATE GENERAL CO.
may also be issued to correct fundamental errors of law. Id. Such an
error may occur when a significant change in the law following a con-
viction means that the defendant was convicted for conduct that is no
longer illegal. For example, in Mandel we granted a writ of error
coram nobis because the defendants’ convictions were based on acts
subsequently determined to be beyond the reach of the federal statute
under which they were convicted. As with coram nobis, a threshold
question under Fed. R. Civ. P. 60(b)(5) is whether there has been a
significant change in the law. Agostini v. Felton, 521 U.S. 203, 215-
16 (1997).2 Rule 60(b)(5) gives a court discretion to void a consent
decree if "it is no longer equitable that the judgment should have pro-
spective application." In other words, it is appropriate to grant a Rule
60(b)(5) motion "if the court is convinced that [its prior decision] is
clearly erroneous and would work a manifest injustice." Agostini, 521
U.S. at 236 (internal quotations omitted). According to the Supreme
Court, this may occur "when the party seeking relief from an injunc-
tion or consent decree can show a significant change either in factual
conditions or in law." Id. at 215 (internal quotations omitted). IGC
argues that SWANCC significantly changed the law applicable to its
conduct.

   Both IGC’s guilty plea and the consent decree assume that the
Corps has jurisdiction under the Clean Water Act to regulate the St.
Charles wetlands. This jurisdiction is no longer asserted under 33
C.F.R. § 328.3(a)(3) because United States v. Wilson, 133 F.3d 251
(4th Cir. 1997), declared that subsection of the regulation invalid.
Instead, the Corps asserts jurisdiction over the wetlands because they
are adjacent, 33 C.F.R. § 328.3(a)(7), to tributaries, § 328.3(a)(5), of
traditional navigable waters, § 328.3(a)(1). The factual predicate for
this jurisdiction, specifically, that the St. Charles wetlands are adja-
cent to tributaries of traditionally navigable waters, has been acknowl-
edged by the parties and this court. For example, the superseding
information to which IGC pled guilty describes the wetlands as "juris-
dictional wetlands, adjacent to waters of the United States." In addi-
tion, in Wilson we concluded that "[t]he government demonstrated
that water from these lands flowed in a drainage pattern through
ditches, intermittent streams, and creeks, ultimately joining the Poto-
    2
   Rule 60(b)(5) also applies if there has been a significant change in the
facts, but IGC does not claim a factual change.
              UNITED STATES v. INTERSTATE GENERAL CO.                7
mac River, a tributary of the Chesapeake Bay." Wilson, 133 F.3d at
254-55.

   IGC’s argument is that SWANCC eliminated jurisdiction over wet-
lands adjacent to waters that are not traditionally navigable even if
those waters eventually flow into traditional navigable waters.
According to IGC, SWANCC limited the Corps’s jurisdiction to (1)
traditional navigable waters and (2) wetlands immediately adjacent to
traditional navigable waters. Consequently, IGC continues, SWANCC
eliminated the Corps’s jurisdiction over the disputed wetlands so that
discharging fill into them without a permit does not violate § 404(a)
of the Clean Water Act.

   IGC is incorrect. The only clear change in law made by SWANCC
is much more narrow. At issue in SWANCC was the Corps’s jurisdic-
tion over an isolated intrastate body of water. "Petitioner argued that
respondents have exceeded their statutory authority in interpreting the
CWA to cover nonnavigable, isolated, intrastate waters based upon
the presence of migratory birds." SWANCC, 531 U.S. at 165-66
(emphasis added). The Corps’s jurisdiction in SWANCC was based
solely on 33 C.F.R. § 328.3(a)(3), the only subsection that covers iso-
lated bodies of water. The Supreme Court’s actual holding is limited
to one particular application of 33 C.F.R. § 328.3(a)(3):

    We hold that 33 C.F.R. § 328.3(a)(3) (1999), as clarified
    and applied to petitioner’s balefill site pursuant to the "Mi-
    gratory Bird Rule," 51 Fed. Reg. 41217 (1986), exceeds the
    authority granted to respondents under § 404(a) of the
    CWA.

SWANCC, 531 U.S. at 174. See also id. at 167 ("We conclude that the
‘Migratory Bird Rule’ is not fairly supported by the CWA."); id. at
171-72 ("We thus decline [to] . . . hold[ ] that isolated ponds, some
only seasonal, wholly located within two Illinois counties, fall under
§ 404(a)’s definition of ‘navigable waters’ because they serve as habi-
tat for migratory birds."). Because this court had already invalidated
33 C.F.R. § 328.3(a)(3) in its entirety in United States v. Wilson, 133
F.3d 251 (4th Cir. 1997), an opinion issued before either the plea or
the consent decree, SWANCC effected no relevant change in deci-
sional law in this circuit. In sum, SWANCC’s holding addressed only
8             UNITED STATES v. INTERSTATE GENERAL CO.
the validity of 33 C.F.R. § 328.3(a)(3), and here the Corps’s jurisdic-
tion does not rest on subsection (a)(3). Rather, the Corps’s jurisdiction
for purposes of the guilty plea and the consent decree is based on 33
C.F.R. § 328.3(a)(1), (a)(5), and (a)(7). We therefore affirm the dis-
trict court’s order denying IGC’s petition for writ of error coram
nobis and denying IGC’s motion to vacate the consent decree.

                                                            AFFIRMED
