Several Iowa farmers have joined the federal government to defend a long-standing Farm Bill provision that protects wetlands against a challenge by a Chicago-based investor and two libertarian law firms.
A ruling against the defendants could endanger wetlands nationwide and upend how the government determines eligibility for federal programs. The parties head to a courthouse Monday in Cedar Rapids, Iowa.
In the upper Midwest, 30 million acres of wetlands, including over 640,000 in Iowa and 1 million in Illinois, are at risk of being destroyed by industrial agriculture, according to a study by the Union of Concerned Scientists.
The provision in question, colloquially known as Swampbuster, has discouraged farmers from turning wetlands into cropland since 1985. Under the law, any farmer who drains a wetland on their property is ineligible for federal benefits such as subsidies, loans and insurance.
Swampbuster protects about 78 million acres of wetlands, according to Food and Water Watch. That’s two-thirds of the wetlands remaining in the continental United States after agriculture, development and climate change have cut their footprint in half since the 1780s.
These ecosystems serve as natural sponges and filters, absorbing excess water to prevent flooding and catching pollutants before they run into local waterways. Wetlands are also a critical habitat for a variety of plants and animals.
However, the plaintiffs, who filed the lawsuit last April in federal court in Iowa, argue that Swampbuster amounts to government overreach because it safeguards wetlands not protected under the Clean Water Act.
“Just because Congress couldn’t directly regulate it, they can’t threaten to take away pre-existing programs to get the same outcome,” said Jeffery McCoy, a lawyer representing Chicago investor James Conlan.
McCoy’s firm, Pacific Legal Foundation, successfully fought a Supreme Court case last year that curtailed the Clean Water Act’s wetland protections.
He called Swampbuster “coercive.”
Fifth-generation farmer Aaron Lehman called it “simple” and “straightforward.”
“No one is forcing us to sign up for farm programs. It’s strictly voluntary,” said Lehman, president of the Iowa Farmers Union. “Protecting our soil and water is reasonable criteria if we’re going to receive government assistance.”
He has taken about 20 acres out of production on his 50-acre farm to abide by Swampbuster and its sister program Sodbuster, which encourages farmers to take highly erodible land out of agricultural production.
Lawyers representing the farmers warn the lawsuit also could threaten Sodbuster and have implications well beyond farm programs.
“The plaintiff is putting forward a very extremist idea that the federal government lacks the authority to make decisions about who it thinks is eligible for taxpayer funding,” said Dani Replogle, an attorney with Food and Water Watch representing the farmers.
McCoy agreed that the case could result in new parameters on the government’s ability to set eligibility requirements broadly, especially if it reaches higher courts. And he said his team is ready to appeal to the U.S. Supreme Court if necessary.
Representatives of the U.S. Department of Agriculture did not immediately respond to requests for comment.
For now, the farmers are most concerned about what could happen to their farms and surrounding communities if wetlands protected under Swampbuster are drained.
Lehman worries that if his upstream neighbors destroy their wetlands, his farm will experience erosion, flooding and water pollution.
These threats would also trickle down to homeowners. Wetlands in the Upper Midwest have prevented $23 billion per year in residential flood loss costs, according to the Union of Concerned Scientists study. As climate change brings more intense storms, they’re anticipated to prevent hundreds of billions of dollars of further flood damage.
“The stakes are huge for farmers, the American public and the environment, but the stakes are nothing for the plaintiff,” said Katie Garvey, an attorney with the Chicago-based Environmental Law and Policy Center also representing the farmers.
Conlan does not participate in farm programs. He rents his land to farmers and sells it to developers under the limited-liability corporation CTM Holdings.
“Our farms are better off by having these provisions that everyone has to abide by if they want to be in a government program. The fact that someone is challenging this that doesn’t have that stake in it is disturbing to me,” Lehman said.
The judge will likely take several weeks to evaluate the arguments presented. If he cannot reach a conclusion, a full trial is scheduled in June.
