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C~ <br />J <br /> <br />237. Plaintiffs allege that the Galveston District violated the prohibition against rule- <br />making by failing to follow the procedure set out in 5 U.S.C. § 553 when they issued <br />Policy No. 01-001. <br />C. CAUSE OF ACTION NO. 3: DECLARATION THAT THE DETERMINATION OF <br />JURISDICTIONAL WETLANDS AT THE BAYPORT SITE IS INVALID AND MUST <br />BE RE-EXAMINED <br />238. Plaintiffs allege that the Corps of Engineers was in error when it determined that <br />the full extent of jurisdictional wetlands subject to regulation as navigable waters under §404 of <br />the Clean Water Act on the Bayport site was 19.7 acres. <br />239. Plaintiffs allege that a greater acreage of wetlands would be considered <br />jurisdictional due to their inclusion within the elevation 12 feet flood zone if more accurate <br />topographic information available to the Galveston District from Hams County and FEMA had <br />been incorporated into the wetland jurisdictional analysis (see paragraphs 75-84, supra). <br />240. Plaintiffs allege that a greater acreage of wetlands would be considered <br />jurisdictional as per the comment submitted by the U.S. Environmental Protection Agency (see <br />paragraphs 88-89, supra) if the new topographic information available to the Galveston District <br />from Harris County and FEMA had been utilized by the Galveston District to determine 'the <br />existence of ditches and micro-depressions connecting the bulk of the wetlands on the Bayport <br />site with either Pine Gully, Galveston Bay or the Bayport Deepwater channel, all of which are <br />navigable waters. <br />241. Plaintiffs allege that overland flow into and through wetlands that enters <br />navigable waters provides a sufficient nexus between the purposes of the Clean Water Act and <br />the wetlands as to make those wetlands jurisdictional navigable waters subject to the permitting <br />requirements of § 404 of the Clean Water Act. <br />31. <br />