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A Midwest farmland owner tests a longstanding wetland conservation law called 'swampbuster'

A blue heron eats a small fish in a wetland.
EPA
/
FLICKR (Public U.S. Government Works)
The Liberty Justice Center and Pacific Legal Foundation jointly filed CTM Holdings, LLC v. U.S. Department of Agriculture in the U.S. District Court for the Northern District of Iowa, Eastern Division, on April 16, 2024.

Under a 40-year-old law, the U.S. Department of Agriculture can withhold subsidies, like crop insurance and disaster payments, from farmers who clear, drain or convert wetlands. A company that owns farmland in Iowa says it’s unconstitutional.

A case in federal court aims to dismantle a decades-old wetlands law, best known for its nickname.

“When swampbuster was enacted and put into law, there were concerns about preserving wetlands across the country for all sorts of reasons,” said Kristine Tidgren, director of the Center for Agricultural Law and Taxation at Iowa State University.

Over half of the original wetlands in the lower 48 states had been lost by the time it was added to the 1985 Farm Bill, largely through agricultural drainage. And people were concerned about impacts to wildlife, water quality and flood mitigation.

Swampbuster aimed to protect what was left by linking wetland conservation with federal farm benefits, including commodity price supports, crop insurance, disaster payments and farm loans.

“The idea was that if you did then convert those wetlands to farmland, then you would be denied a proportion of some of your farm benefits that you would be entitled to otherwise,” Tidgren said.

Today, farmers and landowners who violate the law risk losing all farm program benefits and may need to pay back benefits from previous years.

Swampbuster has protected millions of acres of wetlands in the U.S. But the law is being challenged by a company that owns nearly 800 acres of farmland in Iowa.

A man in a purple jacket and sunglasses stands on a grassy slope with trees.
Courtesy of Liberty Justice Center
Jim Conlan poses for a photo in Illinois. Conlan owns two landholding companies, CTM Holdings, LLC and B&C LLC. He said the two businesses combined manage more than 1,300 acres of farmland in central and eastern Iowa.

A legal test for swampbuster

The lawsuit, filed in federal court in the Northern District of Iowa last April, stems from a nearly 72-acre parcel of land in northeastern Iowa that CTM Holdings bought in 2022.

“It is very fertile, tillable soil, and it has spots in it that the government designated as wetland, and as a result, the trees can't be removed from it. It can't be used for anything,” said Jim Conlan, CTM’s managing member and a retired Chicago attorney.

Conlan asked the USDA’s National Resources Conservation Service to redesignate the nine-acre wetland area, which he claimed had not had any standing water since CTM bought it. When the USDA denied his request, Conlan said he looked more into swampbuster.

“And the closer I read the statute, the more I said, ‘This is crazy.’ This is clearly unconstitutional. It's a taking with no compensation,” said Conlan.

CTM’s lawsuit argues that Congress did not have the authority to pass swampbuster and that it infringes on private property rights. It also challenges some of the agency’s administrative rules.

Tire marks are left behind in the soil near fallen trees. Standing trees hug the perimeter.
Courtesy of Liberty Justice Center
In 2023, CTM cleared trees from the property in Delaware County, Iowa, for farming. Some of the trees in the background are part of the designated wetland, which is why they were not removed.

Attorneys representing the USDA argue that Congress has authority to use federal dollars “in exchange for goods, services, or conduct that benefits the general welfare.” In a court document, they said swampbuster is voluntary.

“CTM’s arguments rely on a flawed premise: that swampbuster directly regulates farmers’ use of their land. It does not. Instead, it simply places a condition on government spending,” they wrote.

The attorneys also said USDA regulations are consistent with the law passed by Congress and that CTM did not follow the correct protocol for wetland review with NRCS.

The lawsuit comes at a time when environmental regulations and federal agencies’ power to oversee them are being scaled back.

A U.S. Supreme Court case in 2023, Sackett v. EPA, sharply limited the EPA’s authority to regulate wetlands under the Clean Water Act.

Last summer, the Supreme Court overturned the Chevron doctrine. Under this legal principle, Tidgren said the courts generally deferred to federal agencies to interpret and implement laws.

“Now, does this mean lots more agency rules will be struck down? Not necessarily,” Tidgren added. “Courts can still look to the agency's reasoning and embrace it, because they recognize that there is a lot of expertise within the agencies.”

A woman in a navy blazer sits at a computer with law books on a shelf behind her monitor.
Rachel Cramer
/
Harvest Public Media
Kristine Tidgren teaches agricultural law and directs the Center for Agricultural Law and Taxation at Iowa State University. On her computer monitor is a PDF of the Food Security Act of 1985, which added Highly Erodible Land Conservation and Wetland Conservation Compliance provisions, dubbed "sodbuster" and "swampbuster."

But the Supreme Court decision, paired with another case last year that changed the statute of limitations for challenging agency rules, will likely result in more litigation, said Tidgren.

Sustainable agriculture group intervenes

The USDA is not alone in defending swampbuster.

Last month, the federal judge overseeing the case allowed the Iowa Farmers Union, Iowa Environmental Council, Dakota Rural Action and Food & Water Watch to intervene. These organizations can make different arguments than the USDA, said Michael Schmidt, general counsel for the Iowa Environmental Council.

“IEC and the other groups that have intervened wanted to show that there are lots of farmers who do support this type of condition on federal subsidies,” Schmidt said. “We wanted to make sure that perspective was heard and that those interests were represented in the case.”

Wetlands help protect farmland and downstream communities by absorbing heavy rain and floodwaters, which are expected to intensify with climate change, said Schmidt. A one-acre wetland can store a million gallons of water.

Floodwaters cover crop fields between roads lined with trees. A small town sits on the horizon.
USDA
/
FLICKR (Public Domain)
Floodwaters inundate fields in Grand Forks County, North Dakota, on May 1, 2013. The watershed is part of the Red River Basin located in parts of Minnesota, North Dakota and South Dakota. The basin lost a significant amount of its native prairie and wetlands, which helped buffer severe flooding.

They also provide vital habitat for wildlife – around half of all federally listed species in the U.S. depend on these ecosystems – and help treat water flushed from farm fields by filtering out nitrates and phosphorus.

Restoring wetlands is part of Iowa’s Nutrient Reduction Strategy to help address the dead zone in the Gulf of Mexico and improve overall water quality in the state. Cutting swampbuster would be a move in the wrong direction, said Schmidt.

“Swampbuster is one of the few conditions that we have in Iowa and nationwide addressing agricultural pollution,” Schmidt said.

In a joint press release, the intervenors said “unhitching federal farm financing from basic conservation requirements” is part of Project 2025, the conservative blueprint for the second Trump Administration.

Food & Water Watch staff attorney Dani Replogle said the case “is a politically motivated attack on longstanding environmental protections.”

Loren Seehase, a Liberty Justice Center attorney representing CTM, disagrees.

“Nobody is arguing the importance of environmental conservation. That’s not what this case is about,” Seehase said. “This case is about upholding the constitution and the importance of protecting property rights.”

Pacific Legal Foundation, which won the Sackett v. EPA Supreme Court case, also represents CTM in the lawsuit against the USDA.

The legal arguments

One of CTM’s arguments is that swampbuster is unconstitutional because Congress lacked the power to pass it in the first place.

The Constitution’s Commerce Clause allows Congress to make laws about trade across state lines, said Jeff McCoy, a Pacific Legal Foundation attorney also representing CTM.

But when it comes to commerce within the state, “the Constitution leaves that to the state legislators,” McCoy said. “These [wetlands] on Jim's property are purely isolated, very small. They're just within his farmland.”

The USDA and the conservation groups intervening in the case say swampbuster falls under the Spending Clause, which authorizes Congress to decide how to use taxpayer dollars. Sometimes this funding comes with conditions.

For example, Congress passed a law in 1984 that allows the federal government to withhold grants for highways in states that do not set the legal drinking age to 21. The Supreme Court upheld the law when it was challenged.

“[CTM is] saying that if Congress is going to give away money to farmers, they have to give it away with absolutely no strings attached and no requirements to do anything. That’s not what the law is,” Katie Garvey, a staff attorney with the Environmental Law and Policy Center, which is representing the Iowa Farmers Union.

CTM’s second argument is that swampbuster is unconstitutional because it requires farmers to waive their rights to “just compensation” that the government would otherwise have to pay if it were taking the land directly through eminent domain.

“That's what's missing from this law. It’s that compensation piece,” said Seehase. “If they find a wetland on your property, they don't provide you any compensation, but you have to keep it in this, basically a conservation easement in perpetuity so long as it's used for agricultural uses and you're receiving USDA benefits.”

A frog sits in shallow water.
USDA
/
FLICKR (Public Domain)
A frog sits on the edge of a wetland in Indiana on May 25, 2021. The USDA’s National Resources Conservation Service makes technical determinations for wetlands on farmland based on the type of soil, vegetation and presence of surface or groundwater. The NRCS says many wetlands “only hold surface water temporarily, but are seasonally saturated.” The Farm Service Agency is responsible for determining whether farm program benefits should be denied because of swampbuster infractions.

The USDA and the intervening conservation groups counter that swampbuster does not take or regulate private land.

“They can choose to fill the wetlands if they want to. It just means they're no longer eligible for the spending that Congress has authorized,” said Schmidt.

Separate from the constitutional arguments, CTM also challenges the USDA’s process for wetland designations.

“[It] says you can only request review if there's an act of God, basically, that changes the hydrology or the topography of the land, like Hurricane Helene literally changed the land, or the agency decides that their prior decision there was a mistake,” Seehase said. “It makes it nearly impossible for somebody to request a redetermination of the land.”

The USDA says that the process is consistent with what lawmakers passed.

But this issue has chaffed other landowners, said Kristrine Tidgren with the Center for Agricultural Law and Taxation.

“One of the biggest frustrations that I hear about the swampbuster provision is just the inability to get before the agency with evidence,” Tidgren said.

A separate lawsuit with landowners in South Dakota represented by Pacific Legal Foundation also challenges the regulations.

Meanwhile, farmers, landowners and conservation groups are closely watching the outcome of the CTM lawsuit.

The case is expected to go to trial in mid-2025, but a decision could be made sooner.

This story was produced in partnership with Harvest Public Media, a collaboration of public media newsrooms in the Midwest. It reports on food systems, agriculture and rural issues. 

I cover agriculture, rural communities and environmental issues for Harvest Public Media, and I cover news from north-central Iowa as the Ames-based reporter for Iowa Public Radio. You can reach me at rcramer@iowapublicradio.org.