Federal hearing to take up hotly debated issue of wetlands protections

In a court hearing that could have implications for the fate of federal protections for US wetlands, lawyers for an Iowa farmland owner will face off on Monday against the federal government and environmental advocates over the constitutionality of the Farm Bill’s hotly debated “Swampbuster” law.

The hearing in the case pits CTM Holdings LLC against the US Department of Agriculture (USDA) and several organizations that intervened in the case in support of USDA, and addresses a provision of the US Farm Bill dealing with wetlands management.

First introduced by Congress in 1985 after more than half of all US wetlands had been drained or filled, the provision prohibits farmers from using designated wetlands on their property if they want to be eligible for crop insurance subsidies, farm loans and other federal benefits.

The measures aims to prevent farmers from draining, filling in or otherwise altering wetlands, which provide critical habitats for fish and waterfowl, help mitigate flooding and sequester carbon. The provision currently protects about three-quarters of remaining wetlands in the contiguous US – at least 78 million acres.

CTM and supporting organizations are challenging Swampbuster, arguing that the provision violates farmers’ Fifth Amendment rights because it amounts to a taking of private property without just compensation and exceeds the federal government’s authority.

Jim Conlan, the owner of the landholding company, owns a 71-acre parcel of land that includes 9 acres deemed wetlands by the government, but argues that the land in question is dry and not connected to any water source. Regardless, CTM is not allowed to farm the land in question without putting USDA benefits at risk, the plaintiffs argue.

“On Monday, we plant to reiterate the argument that … Congress cannot regulate purely intrastate land either directly or indirectly,” said Jeffery McCoy, an attorney for the Pacific Legal Foundation, which represents CTM Holdings together with the Liberty Justice Center. The responsibility for regulating tracts of land such as Conlan’s falls on the states, he said.

The plaintiff’s attorneys argue in a filing that “it is not speculative that Swampbuster’s provisions injure CTM because Swampbuster prevents CTM from using portions of the property unless it gives up eligibility for USDA programs.” They also claim that Swampbuster is unconstitutional and that Congress never actually had the power to pass it.

In contrast, the USDA says the provision merely sets conditions on recipients of government funding and does not directly regulate farmer use of land.

Intervening environmental groups and Iowa Farmers Union advocates say that a finding for the plaintiff would set a dangerous precedent, and that landowners who want taxpayer subsidies must adhere to the protective regulations.

“This would have such huge, upending impacts on farm policy that it can’t reasonably prevail,” said Dani Replogle, an attorney for Food & Water Watch, one of the intervening groups.

“Any eligibility requirements on federal funding that touch on private property would potentially be at risk if the plaintiff’s theory were to win the day,” she said, adding that it could also mark the downfall of Swampbuster’s sister program, “Sodbuster,” which protects lands at high risk for erosion.

Losing Swampbuster would be “a real poison pill” for the Mississippi River Basin, the Gulf of Mexico and other major US water systems, added Replogle, since wetlands help prevent harmful nitrates in farm fertilizer from draining into larger bodies of water.

“We have a real problem with the idea that a corporate entity that owns all of this land could destroy their wetlands and downstream all of those flooding impacts will manifest onto small family farmers who couldn’t afford to take the same precautions on their land,” she said.

Currently, about 55-60% of Iowa cropland is farmed on some sort of rental or lease arrangement, which creates a big problem for water quality since landholder companies lack incentives to care for the land, said John Gilbert, a board member with the Iowa Farmers Union and former Commissioner for the Hardin County soil and water district in north-central Iowa.

The state’s water quality “leaves much to be desired,” according to the Iowa Environmental Council’s website, with “largely unregulated” runoff of soil, fertilizer and manure from agricultural lands at the heart of the problem.

In their oral arguments, the Iowa Farmers Union, Iowa Environmental Council, Food & Water Watch, and Dakota Rural Action will ask the judge to dismiss the case on the grounds that the plaintiff lacks standing, said Replogle. Conlan is not a farmer and hasn’t received any Farm Benefits since last September, the groups argue in a court filing.

CTM’s case is not the first to challenge Swampbuster. In the 2022 Foster v. USDA decision, a federal court in South Dakota ruled that the provision is constitutional and falls within Congress’ spending power because it does not exercise direct regulatory power.

(Featured image by Mason Field on Unsplash.)