A farmer in South Dakota has filed a lawsuit against the United States Department of Agriculture (“USDA”) alleging that its wetland conservation program known colloquially as “Swampbuster” violates the United States Constitution. The lawsuit stems from a determination made by the Natural Resources Conservation Service (“NRCS”) – the branch of USDA that implements the Swampbuster program – finding that a 0.8-acre area of the plaintiff’s farm is a wetland. According to the plaintiff, that determination is incorrect. The plaintiff has previously sued USDA over the wetland determination, but was unsuccessful in getting the Department to alter its decision. Now, the plaintiff has once again filed a lawsuit claiming that the wetland determination violates the law, and that the Swampbuster program itself is unconstitutional.


Swampbuster refers to provisions of the Highly Erodible Land and Wetland Conservation program that addresses wetland conservation. The purpose of Swampbuster is to conserve the nation’s wetlands by removing incentive to convert wetlands into areas capable of producing an agricultural commodity. Any producer who does transform a wetland in such a way will become ineligible for certain USDA benefits.

In order to effectively implement Swampbuster, it is crucial for both NRCS and producers affected by the program to know whether an area is a wetland. To do so, NRCS conducts what are known as wetland determinations. The wetland determination process is laid out under Swampbuster, and can result in an area being classified as a type of wetland, a converted wetland, or an area not subject to Swampbuster regulation. To learn more about Swampbuster and wetland determinations, click here.

In 2011, NRCS certified the final wetland determination at issue in Foster v. Vilsack, No. 4:21-cv-04081 (D. S.D. May 5, 2021). The determination concluded that a 0.8-acre area of the plaintiff’s farm was a wetland under Swampbuster. According to the plaintiff, the area was not a wetland, but was instead a mud puddle that occurred every year as the result of melting snow piled up against a nearby tree belt which had been planted in 1936. The plaintiff contends that the puddle is an “artificial wetland” which is defined under Swampbuster as “an area that was formerly non-wetland, but now meets wetland criteria due to human activities.” 7 C.F.R. § 12.2(a). Artificial wetlands are not regulated by Swampbuster, meaning that if NRCS identifies an area as an artificial wetland, then it may be converted for agricultural production without risking a loss of USDA benefits.

The plaintiff initially appealed the 2011 wetland determination, and ultimately went to federal court which resulted in an opinion upholding the determination. Following that opinion, the plaintiff resubmitted the request for review of the 2011 determination to NRCS. In August 2017, NRCS denied the request based on Swampbuster’s “Review Regulation” which states that “a person may request review of a certification only if a natural event alters the topography or hydrology of the subject land to the extent that the final certification is no longer a reliable indication of site conditions, or if NRCS concurs with an affected person that an error exists in the current wetland determination.” 7 C.F.R. § 12.30(c)(6).

In 2020, the plaintiff once again submitted a request for review of the 2011 wetland determination. This time, the plaintiff included additional technical information demonstrating that the area which had been identified as a wetland was instead a seasonal puddle formed as the result of snow piling against the tree belt. Once again, NRCS denied the request according to Swampbuster’s Review Regulation. Following that denial, the plaintiffs filed a new lawsuit.

The Lawsuit

In their latest lawsuit, the plaintiff brings several claims challenging both NRCS’s denial of the 2020 request for review, and the constitutionality of both Swampbuster and the Review Regulation. According to the plaintiff: Swampbuster violates both the Commerce Clause and the 10th Amendment; that the Review Regulation is not in legal effect and therefore may not be used to regulate the plaintiff; that the Review Regulation violates both Swampbuster and the Due Process Clause; and, because of the other arguments the plaintiff is making, NRCS unlawfully withheld agency action by denying the plaintiff’s 2017 and 2020 requests for review.

Under the United States Constitution, Congress is granted the power “to regulate commerce with foreign nations, and among the several states.” Known as the Commerce Clause, Congress has used that section of the Constitution as a basis for passing legislation regulating the activities of states and citizens. Under the 10th Amendment, all powers not specifically delegated to Congress in the Constitution are left to the States to exercise. This includes the police power which is often used as the basis for regulating land and water use. In Foster vs. Vilsack, the plaintiff argues that because Swampbuster does not regulate any part of foreign or interstate commerce, it is therefore unconstitutional under the Commerce Clause. The plaintiff also contends that Swampbuster is unconstitutional under the 10th Amendment because the program regulates intrastate land and water use. The plaintiff asks the court to find that Swampbuster is unconstitutional and conclude that it may not be enforced against the plaintiff.

Next, the plaintiff argues that the Review Regulation is not legally in effect, and that it violates both the text of Swampbuster and the Due Process Clause of the Constitution. According to the plaintiff, the Review Regulation is not legally in effect because it does not conform with the requirements of the Congressional Review Act (“CRA”). The CRA is a federal statute passed in 1996 with the purpose of granting Congress a certain amount of review of agency regulations. A main requirement of the CRA is for federal agencies to report their rulemaking activities to Congress. An agency must submit a regulation to Congress for review before the regulation can take legal affect. Here, the plaintiff argues that the Review Regulation was never submitted to Congress, and therefore cannot be enforced.

The plaintiff also claims that, even if the Review Regulation had been submitted to Congress, it would still be unenforceable because it violates Swampbuster and the Due Process Clause. Under the language of the Review Regulation, a person may only request a review of a wetland determination if a natural event alters the landscape in such a way that the determination is not longer reliable, or if NRCS agrees with the person requesting the review that there is an error in the existing wetland determination. The text of Swampbuster states that a wetland determination will be valid so long as the area is used for agriculture or until the person affected by the certification requests review. 16 U.S.C. § 3822(a)(4). The plaintiff argues that the Review Regulation is in direct conflict with the text of Swampbuster because it imposes conditions on a party’s right to request review of wetland determinations. The plaintiff also contends that the Review Regulation violates the Due Process Clause by creating “an adjudicatory decision-making process which is rigged against the requestor.” The Due Process Clause guarantees due process of law before the government may deprive someone of “life, liberty, or property.” Here, the plaintiff argues that the Review Regulation violates the Clause because it states that NRCS only has to grant review of a legally binding wetland determination decision if the affected area has experienced a change or if NRCS agrees there is an error in the existing determination.

Finally, the plaintiff argues that NRCS unlawfully denied both the 2017 and 2020 requests for review of the 2011 wetland determination. According to the plaintiff, NRCS wrongly denied those requests by relying on the Review Regulation, and because the new information included in the 2020 request “would meet any reasonable regulatory standard” requiring review after new information became available.

U.S. v. Dierckman

Currently, USDA has yet to file a response to the plaintiff’s complaint, making it impossible to know what counter-arguments will ultimately be raised. However, it is worth noting that there is past precedent finding that Swampbuster is a constitutionally valid exercise of Congress’s spending power.

In U.S. v. Dierckman, No. 98-4131 (7th Cir. 2000) the Seventh Circuit Court of Appeals considered a constitutional challenge to Swampbuster. In that case, the plaintiff made a similar argument to the one being raised in Foster v. Vilsack. The plaintiff in U.S. v. Dierckman argued that Congress did not have the power to implement Swampbuster because regulation of an intrastate wetland did not have a relationship to interstate commerce and therefore could not be regulated under the Commerce Clause. The court disagreed that Swampbuster was unconstitutional. Crucially, the court found that the plaintiff was mistaken in assuming that Swampbuster was an exercise of the Commerce Clause. Instead, the court concludes that Swampbuster is a constitutional exercise of Congress’s spending power.

Under the United States Constitution, Congress is granted to authority to “lay and collect taxes, duties, imposts and excises, to pay the depts and provide for the common defense and general welfare of the United States[.]” Article 1, Section 8, Clause 1. Known as the spending power, this authority has been interpreted to allow Congress to authorize expenditure of public money for public purposes without being limited by the Constitution’s direct grants of legislative power, such as the Commerce Clause. This has allowed Congress to pass statutes which condition the receipt of federal money upon compliance with the federal statute and its regulations. According to the Seventh Circuit, this is exactly what Swampbuster does. Under Swampbuster, receipt of USDA benefits is conditioned on not converting wetlands into land capable of producing an agricultural commodity. Therefore, the Seventh Circuit concluded that Swampbuster is a constitutional exercise of Congress’s spending power.


It is currently uncertain how this lawsuit will be resolved. Although the USDA may seek to rely on the Seventh Circuit’s conclusion that Swampbuster is constitutional under the spending power, Foster v. Vilsack has been filed in the Eighth Circuit which is not required to abide by precedent from a different circuit. Whatever the outcome, this case has the potential to impact Swampbuster going forward.


To read the complaint in Foster v. Vilsack, click here.

To read the court’s decision in U.S. v. Dierckman, click here.

To read the text of Swampbuster, click here.

To read the Swampbuster regulations, click here.