Cite as: 531 U. S. 159 (2001)
Stevens, J., dissenting
id., at 136 ("Congress acquiesced in the [1975] administrative construction [of the Corps' jurisdiction]"), with ante, at 170 ("We conclude that respondents have failed to make the necessary showing that the failure of the 1977 House bill demonstrates Congress' acquiescence to the Corps' regulations . . .").13 Having already concluded that Congress acquiesced in the Corps' regulatory definition of its jurisdiction, the Court is wrong to reverse course today. See Dickerson v. United States, 530 U. S. 428, 443 (2000) (Rehnquist, C. J.) (" '[T]he doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some "special justification" ' ").
More important than the 1977 bill that did not become law are the provisions that actually were included in the 1977 revisions. Instead of agreeing with those who sought to withdraw the Corps' jurisdiction over "isolated" waters,
13 The majority appears to believe that its position is consistent with Riverside Bayview because of that case's reservation of the question whether the Corps' jurisdiction extends to "certain wetlands not necessarily adjacent to other waters," 474 U. S., at 124, n. 2. But it is clear from the context that the question reserved by Riverside Bayview did not concern "isolated" waters, such as those at issue in this case, but rather "isolated" wetlands. See id., at 131-132, n. 8 ("We are not called upon to address the question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . ."). Unlike the open waters present on petitioner's site, wetlands are lands "that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." 33 CFR § 328.3(b) (2000). If, as I believe, actually navigable waters lie at the very heart of Congress' commerce power and "isolated," nonnavigable waters lie closer to (but well within) the margin, "isolated wetlands," which are themselves only marginally "waters," are the most marginal category of "waters of the United States" potentially covered by the statute. It was the question of the extension of federal jurisdiction to that category of "waters" that the Riverside Bayview Court reserved. That question is not presented in this case.
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