John Gilbert’s father spent years trying to convert a flood-prone patch of land on their nearly 800-acre farm in Hardin County, Iowa, to more cropland.
“We fought with that land for many years,” said Gilbert, now in his mid-70s. But it was always only a matter of time before heavy rain made it impossible to grow crops. “Some land just isn’t meant to be farmed.”
The Gilbert family stopped fighting nature in the 1990s, shortly after the introduction of the Wetland Conservation provisions in the 1985 Farm Bill. Known as Swampbuster, the federal program requires farmers to conserve wetlands to be eligible for federal farm subsidies, loans and insurance.
The voluntary program encourages Gilbert and many farmers across the country to preserve ecosystems that act as natural flood controls, water quality managers and habitats for native species. His family converted the patch back to grassland and uses it to graze cattle, a move that has improved soil health and mitigated flooding in the long term.
But a federal lawsuit brought before a district court in Iowa by a Chicago investor and two libertarian law firms based in Texas and California in April aims to abolish Swampbuster. It’s one of the federal government’s last mechanisms to safeguard wetlands, whose protections have been severely curtailed over the last decade by the first Trump administration and conservative Supreme Court justices just as climate change makes them more necessary.
Thirty million acres of unprotected wetlands in the upper Midwest, including over 640,000 in Iowa and 1 million in Illinois, are at risk of being destroyed, according to a new study by the Union of Concerned Scientists. These same wetlands provide nearly $23 billion in annual flood mitigation benefits and have the potential to provide hundreds of billions of dollars of mitigation benefits as climate change increases precipitation across the region.
“People who aren’t familiar with the case think this just has to do with Iowa. But it’s a nationwide case that would have nationwide consequences,” said Katie Garvey, an attorney at the Chicago-based Environmental Law and Policy Center. “It would basically get rid of one of the only remaining levels of federal protections of wetlands.”
Garvey is representing Gilbert and fellow members of the Iowa Farmers Union who formally entered the case as intervenors earlier this month. It marks the first time farmers directly implicated in the lawsuit will be involved.
“Do to those downstream as you would have those upstream do to you” has become a mantra Gilbert takes seriously. His farm is in the prairie pothole region of north central Iowa, one of the largest grassland-wetland ecosystems on the planet.
Since wetlands serve as natural sponges and filters, if a wetland upstream is destroyed, it can have major implications on flooding and water quality downstream.
Gilbert already expects to lose 10% to 20% of his planted acres to flooding every year, in part due to upstream farmers who’ve drained their wetlands.
The lower court is expected to decide the case by mid-2025, and both sides are prepared to appeal it to the Supreme Court.
The Pacific Legal Foundation, the California-based firm representing the plaintiff, already successfully argued a case before the Supreme Court last year that upended federal protections for wetlands under the Clean Water Act.
All five conservative justices agreed that the federal government’s definition of wetlands was too broad in Sackett v. EPA, allowing it to unduly impose restrictions on land use in the name of environmental protection. The decision largely left it up to states to decide whether wetlands could be drained and developed.
Environmental advocates say this makes the voluntary Swampbuster program all the more important, while libertarians believe it’s all the more reason to abolish it.
Pacific Legal Foundation senior attorney Jeffrey McCoy fears the federal government will abuse the farm program to compensate for the regulatory control it lost in Sackett v. EPA.
CTM Holdings LLC v. Department of Agriculture was filed less than a year after the Supreme Court ruled in Sackett v. EPA in May 2023.
The plaintiff, James Conlan, owns over 1,000 acres of farmland in Iowa but resides in Chicago. A retired lawyer and hedge fund manager, he’s been accumulating the land as an investment under the LLC. Conlan worked for the law firm representing Tribune Co. when it filed for bankruptcy in 2008. Tribune Co. was the former owner of the Chicago Tribune.
In 2022, he bought 71 acres in Delaware County intending to rent it to farmers and eventually sell it to a developer. Wetlands are scattered throughout approximately 9 acres of the property, according to a 2010 Agriculture Department evaluation.
Conlan knew about the wetland designations before buying the land but believed he could get them overturned because the land in question had no standing water and was not next to a body of water.
Many wetlands are seasonal and appear dry during more arid times of year, according to the federal EPA. They are on standby to act as sponges during heavy rains and are connected to bodies of water via underground networks.
Per Swampbuster, if Conlan or anyone he leases to farms those 9 acres, all 1,000 acres of his farmland will be ineligible for federal farm assistance programs.
He and his attorneys argue that Swampbuster violates the Fifth Amendment, which requires just compensation if the government seizes one’s property for public use.
“Either the government will have to pay for the taking, or if it doesn’t, then I will till it under because it is eminently farmable land,” said Conlan, assuming the judge will side with him.
The plaintiff’s legal pursuits align with Project 2025’s explicit goal to eliminate wetlands and erodible land compliance programs, which it characterizes as “problematic (Natural Resource Conservation Service) overreach.”
If he wins the case, a legal precedent would be established to eliminate Swampbuster and Sodbuster, a similar program that tethers federal benefits to the conservation of highly erodible lands.
The Project 2025 architects — some of whom President-elect Donald Trump has nominated to his Cabinet — said these compliance programs should be replaced with a toothless “general best practice plan” approved at the state level.
“The state is in a better position to make determinations for these puddles,” echoed McCoy, who is also fighting a similar case against Swampbuster in South Dakota.
Garvey said Trump’s election heightened the stakes of the case and reaffirmed the importance of including farmers’ voices in the court proceedings. She is concerned small family farms and beginning farmers such as 29-year-old Elle Gadient and her husband, who purchased his family’s farm about 12 miles downstream from the land at the center of the case, will be hurt most if Swampbuster and Sodbuster are abolished.
The programs reward conservation practices that small farms are already more likely to engage in than large-scale commercial farmers. Family farmers generally think of their land as an heirloom to be cared for and passed down rather than a commodity that can be drained, tilled and abandoned.
Yet Conlan, a hedge fund manager, asserted he’s acting in farmers’ best interest.
“Are those 9 acres going to change my life? No, but the government’s actions are outrageous here and I’m big enough to stand them up on their heels and say you can’t do this,” he said.
But Gadient, who grew up on a farm and serves as the beginning farmer representative of the Iowa Farmers Union thinks the voluntary compliance programs are fair.
“I believe strongly that in order to receive federal subsidies, farmers should be good stewards of the land,” she wrote in a brief submitted to the Iowa district court.
Because Gadient and her husband abided by Swampbuster and Sodbuster, the young couple qualified for a low-interest loan that enabled them to buy their farm. It was a major milestone; the land had been in her husband’s family since the early 1900s. Diminishing profit margins and rising land prices, caused in part by out-of-state investors such as Conlan, have made it difficult for young people to get into the business without support.
Now, their farm is directly threatened by CTM Holdings LLC v. Department of Agriculture. The wetlands in question hold water that could otherwise flow down and cause flooding on her farm.
Gadient’s worries extend beyond the plot of land she hopes to make a living on in the coming decades to national drinking water quality and the health of ecosystems south of her.
“This may seem like a small stream in Iowa that’s really far away, but the impact is not only for my local community and my local environment,” she said. “This is eventually going to the Mississippi River and down to the Gulf of Mexico.”
