One Iowa landowner fights to farm a designated wetland. Others could face consequences downstream

DELAWARE, IOWA – In northeast Iowa, a wispy stand of trees looks out of place.

It is surrounded by crop fields on the north side of a four-lane highway, an oasis of nature that is uncommon in rural Iowa, where farming every inch of land is paramount.

Its owner hopes to cut and till it for cropland.

But he can’t do it without risking his business — for now.

Jim Conlan, an out-of-state investor in Iowa farmland, knew the federal government considered those 9 acres to be a wetland before he bought it as part of a larger tract. If he clears and plows that land, he will lose eligibility for the federally subsidized crop insurance and other benefits that a majority of row crop farmers depend on, under a 1985 law called “Swampbuster.”

Conlan went to court to challenge the law, arguing it violates his constitutionally protected property rights. If he wins, hundreds of thousands of acres in Iowa and other states could be drained, plowed and put into production.

Conlan said he sued after the U.S. Department of Agriculture declined to reclassify the wetland, which is often dry.

He’s represented by the same law firm that persuaded the U.S. Supreme Court in 2023 to overturn Clean Water Act protection for vast areas of wetlands because they are not continuously connected to a stream. As they did with the Sackett case, Conlan’s lawyers hope to topple another pillar of the federal government’s wetland conservation policy.

The case describes Swampbuster as unfair and coercive, arguing that it prevents farmers from draining or filling wetlands on their own properties without paying them for taking the land out of production.

“It seemed really egregious to me that farmers — an industry that’s so vital to America and to the world — couldn’t use their own property to do this and weren’t being compensated for it,” said Loren Seehase, senior counsel at the Liberty Justice Center, one of two organizations representing Conlan’s company, CTM Holdings. “As long as they … are getting [federal] benefits, they can’t do anything with that wetland.”

But advocates of the statute say it’s reasonable — the law does not prohibit farmers from draining wetlands on their property.

“This isn’t money that’s owed to these farmers. These are optional grants and insurance programs that the government provides,” said Dani Replogle, a staff attorney at Food & Water Watch. “So there are conditions associated with receiving government money, just like there are conditions associated with receiving Medicare and food stamps.”

One of those people, a beginning farmer named Elle Gadient, has 160 acres downstream from Conlan’s property. Gadient’s cropland and pasture swaddle an old white farmhouse at the top of a hill.

She and her husband hope to raise young dairy cattle there in future years.

Gadient is concerned about what happens if Swampbuster goes away. “This is really a program for all farmers and affects water quality that affects all of us,” she said.

Wetlands in the United States have gained recognition over time for their environmental benefits. They filter pollution, absorb floodwaters and provide habitat for wildlife. But millions of acres have been destroyed since European settlement.

When European settlers arrived in the Midwest in the 1700s, wetlands were an impediment to agriculture. So settlers drained most of them with ditches and, later, perforated underground tubes known as tiling.

There are now thousands of these districts, which are overseen by counties and landowners to collectively maintain the vast systems of drain tiling that lie several feet beneath the surface. There are hundreds of thousands of miles of tile in Iowa alone.

In Iowa and Illinois — the nation’s leaders for corn and soybean production — about 90% of those states’ pre-settlement wetlands were converted, primarily to increase their cropland.

Attitudes toward wetland destruction shifted about 40 years ago. Up to that point, USDA programs were not uniformly designed to protect wetlands — some were actively destructive, such as crop commodification and price supports, which encouraged practices that led to more soil erosion and polluted water.

Conservation groups like the Sierra Club and the National Audubon Society lobbied for changes to agricultural policies in the 1985 farm bill, or the Food Security Act.

The farm bill is a massive, omnibus measure that funds federal policies for food and agriculture. It is renewed by lawmakers about every five years, and it includes SNAP benefits and crop insurance subsidies for farmers, among other supports. Hundreds of billions of dollars are allocated to cover programs, loans and insurance.

These provisions bound wetlands protection to USDA loans, payments and assistance programs, including crop insurance and price support. They are key programs that more than 34% of farm households in the U.S. receive, helping them break even in times of drought or low commodity prices. About 95% of both corn and soybeans in Iowa — nearly 23 million acres — are insured, according to the USDA.

And it worked. A 1998 study found that about 12 million acres of U.S. wetlands had been protected under Swampbuster.

But it’s hard to track these threatened ecosystems. The Natural Resources Conservation Service (NRCS), which oversees Swampbuster rules, does not maintain a searchable database and cannot accurately say how many acres there are, said Sue Snyder Thomas, a former NRCS state compliance specialist.

She said the wetlands often range in size from a half acre to 10 acres in Iowa.

Conlan’s property doesn’t look like a wetland.

But you can’t judge a swamp by its surface water.

The NRCS is the judge. Federal regulators evaluate the soil and vegetation for signs that it’s often waterlogged during the growing season. They also review aerial images.

In 2010, the NRCS determined that part of the property was a wetland for the purposes of the Swampbuster rule.

Twelve years later, Conlan bought 72 acres near the town of Delaware for $700,000, according to county records. A little more than half of those acres were farmed at the time.

Conlan has since removed trees from part of the land to grow more corn and soybeans, and he would like to clear the wetland. He asked the NRCS to re-evaluate the wetland designation but said he was refused.

Wetland designations have been challenged repeatedly in federal court with varying degrees of success, but Conlan’s lawsuit might be the first to question whether the wetland protection program itself is lawful under the Fifth Amendment’s clause that says private property cannot be taken for public use without just compensation.

The lawsuit claims that when the USDA designates a piece of farmland as a wetland, it effectively takes that area out of production, barring farmers from draining, filling or cultivating it if they wish to remain eligible for USDA benefits.

While applying for USDA benefits is not mandatory, the lawsuit claims that farmers’ historic reliance on crop insurance and other federal subsidies — coupled with pressures on the nation’s agriculture industry — have made these programs essential to their livelihoods and operations.

And if Conlan violates Swampbuster, he loses the potential for those benefits for all of his Iowa farmland, which totals more than 1,000 acres. Conlan rents the land to farmers and confers the benefits to them.

“They’re basically relinquishing [that] constitutional right in order to receive federal benefits,” said Seehase, the attorney for Conlan’s company. “There are ways to conserve and preserve our environment that still keep those constitutional protections in place.”

The groups challenging the Swampbuster law don’t think it will result in widespread wetlands loss.

“It’s a huge logical misstep to think that every farmer would then till their land and turn it into farmlands,” Seehase said. “Not every farmer is going to do that.”

Others are less optimistic. Corn and soybean prices are down and costs to grow the crops are up.

“When margins are tight, farmers find every additional acre they can plant corn to plant the corn,” said Aaron Lehman, president of the Iowa Farmers Union, a group of progressive farmers that has intervened to block the lawsuit.

He added: “It would, for sure, accelerate the depletion of our wetlands.”

The wetlands can be transformed into a non-farm use without losing farm subsidies, under the federal rules. And following the Sackett court ruling, Swampbuster is the main federal legal disincentive for farmers who want to drain wetlands that are not continuously connected to navigable waters.

At a March 31 hearing on Conlan’s case in Iowa’s northern district, Chief U.S. District Judge C.J. Williams noted that potential: “You could build a skyscraper on it if you want to,” Williams said.

Williams is considering competing motions in the case to decide the lawsuit before it is set to go to trial in June.

An assistant U.S. attorney representing the USDA argued that the case should be tossed out because the agency was willing to take a second look at whether Conlan’s property is a wetland, though the agency admitted botching that message. Conlan is dubious.

Even if the judge agrees it was a miscommunication, he might still decide to weigh the arguments about its constitutionality. Whatever he decides will likely be appealed.

That still might pit farmer against farmer.

“All my upstream neighbors’ land could be drained, and that water’s got to go somewhere,” said Lehman, who farms in central Iowa. “It’s going to come and make my land less usable.”

That’s disconcerting to Gadient, the young farmer who is downstream from the land at the center of the Iowa lawsuit.

She and her husband have sought to strengthen their farm community, inviting their neighbors for regular breakfasts at their home on the hill.

They hope to graze livestock on their farm but for now have chickens and barn cats that laze about.

“We love the community,” she said. “We really care about our neighbors.”