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• <br />B. CAUSE OF ACTION NO. 2: ILLEGAL RULE-MAKING UNDER THE APA BY <br />THE GALVESTON DISTRICT OF THE U.S. ARMY CORPS OF ENGINEERS <br />REGARDING 1YiE EXTENT OF JURISDICTIONAL WETLANDS UNDER §4O4 OF <br />THE CLEAN WATER ACT <br />214. On information and belief, plaintiffs assert that there is a significantly greater <br />acreage of jurisdictional wetlands on the Bayport site than has been identified by the Galveston <br />District. <br />215. Plaintiffs allege that the Galveston District has adopted an illegal rule not <br />promulgated under the APA that prevents certain types of wetlands from being classified as <br />jurisdictional, thereby artificially limiting the acres of wetlands subject to §404 permitting under <br />the Clean Water Act. <br />216. On January 9, 2001 the United States Supreme Court issued its ruling in Solid <br />Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 <br />(2001) (SWANCC). <br />217. This ruling altered the jurisdictional reach .of the U.S. Army Corps of Engineers <br />under Section 404 of the Clean Water Act. <br />218. At its core, the SWANCC decision prevents the Corps from asserting jurisdiction <br />over isolated wetlands on the basis of the movement of migratory waterfowl. <br />219. In response to the SWANCC decision, the Corps in Washington, D.C. on <br />January 15, 2003 published its Advance Notice of Proposed Rulemaking to address these issues. <br />220. However, on February 13, 2001, the Galveston District unilaterally issued its own <br />written Policy No. 01-001 regarding wetlands entitled "Subject of Adjacentllsolated Criteria," <br />which was addressed to all regulatory personnel with the Galveston District. <br />221. This policy states: <br />28. <br />