The Environmental Law Reporter's recent comment¹ on the Avoyelles wetlands protection cases² was of particular interest to me, since I have spent to much time working on them and am still pressing for a meaningful implementation of the Fifth Circuit decision. I was particularly intrigued by the discussion of judicial review under Avoyelles. The courts have yet to settle on a consistent approach for review of agency actions under §404.³ The comment criticizes the Fifth Circuit for failing to end the confusion. I concur that the Fifth Circuit's rulings on the scope of review and the application of the arbitrary and capricious standard are unclear.

ELR's analysis leaves unanswered some of the same issues that the Fifth Circuit opinion does, although I confess, I am not sure they can be answered in the abstract. The comment cites Crowel v. Benson,⁴ where the Supreme Court declared the courts may do a de novo review of jurisdictional facts. In our various arguments to the district court and Fifth Circuit, we did argue that the constitutional limit on federal jurisdiction under the Commerce Clause should be a measure of the reasonableness or arbitrariness of the Corps of Engineers or Environmental Protection Agency (EPA) wetlands determination. We stressed that the statutory term is "waters of the United States," that virtually the entire tract is a fish spawning and nursery area and aquatic wildlife breeding area, and that those functions define waters of the United States. The Fifth Circuit opinion does not deal with this constitutional issue at all except obliquely, in response to the private defendants' vagueness claim.