Wetlands & Swampbuster

Swampbuster Compliance, Done Right

Wetland determinations, prior-converted status, and Swampbuster compliance — settle the question before it becomes a violation.

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Swampbuster: The Farm Program Killer Nobody Talks About

The Swampbuster provisions of the Food Security Act make it illegal to produce agricultural commodities on a converted wetland or to convert a wetland for agricultural use. The penalty for a violation is the loss of all federal farm program benefits — not just conservation programs, but crop insurance, ARC/PLC, disaster payments, and FSA loans.

For a farm that relies on crop insurance and commodity program payments, a Swampbuster violation can cost tens or hundreds of thousands of dollars per year — indefinitely, until the violation is corrected.

The most common trigger is drainage. Installing new tile, cleaning a ditch, filling a low spot, or even farming through a wet area that NRCS later classifies as a wetland can trigger a violation. Wetland boundaries are not always obvious, and NRCS determinations can be based on outdated data.

If you receive a Swampbuster violation notice, you need legal counsel immediately. This is one of the most critical issues we handle in our water and drainage practice. The determination can be appealed, and exemptions may be available — good faith violations, minimal effect exemptions, and certified wetland delineations.

warningWhat’s at Risk

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    Total Program Loss: All federal farm payments — crop insurance, ARC/PLC, CRP, disaster — at risk.
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    Retroactive Penalties: Violations can trigger repayment of benefits already received.
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    Permanent Impact: Benefits suspended until violation corrected or exemption granted.
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    Land Value Impact: Wetland determination can reduce value and usability of affected acres.
Kole surveying wetland area with aerial map and survey flags

Not Every Wet Spot Is a “Wetland” — And We Can Prove It

NRCS wetland determinations are based on three criteria: hydric soils, hydrophytic vegetation, and wetland hydrology. All three must be present for an area to qualify as a jurisdictional wetland under Swampbuster.

The problem is that field determinations are sometimes made using desktop analysis — aerial photos and soil maps — without a thorough on-site evaluation. A spot that holds water after a heavy rain is not necessarily a wetland. A low area with cattails growing in it may have been drained and farmed for decades before NRCS decided to look at it.

When a wetland determination looks wrong on its face, Midwest Ag Law helps you assemble the evidence that matters: historical aerial photography showing the area was farmed for decades, soil boring data showing non-hydric conditions, hydrological analysis, and statements from longtime neighbors and operators who know the ground. If a formal challenge or hearing becomes necessary, that record goes with you to litigation counsel across the Midwest.

We also advise on available exemptions — the “good faith” exemption for farmers who unknowingly violated, the “minimal effect” exemption for small or negligible conversions, and “prior converted” status for areas drained before December 23, 1985 — and help you document eligibility so the question is settled before it becomes a fight.

The Midwest Ag Law Process

We don’t do hourly billing, and we don’t hand you a stack of paper and wish you luck. Our process is designed to be transparent, thorough, and completely finished when we’re done.

1

Emergency Review

When you receive a Swampbuster notice, we review the determination immediately. We identify the basis for NRCS’s classification and assess whether it can be challenged.

2

Evidence Development

We gather historical aerial photos, soil data, farming records, and hydrological evidence. If needed, we engage independent environmental consultants to conduct a formal wetland delineation.

3

Appeal & Defense

We pursue every available defense — challenging the wetland classification, demonstrating good faith, seeking minimal effect exemption, or establishing prior converted status. If that administrative process becomes adversarial, we coordinate with litigation counsel across the Midwest to carry it through NRCS, the State Conservationist, and NAD if necessary.

Swampbuster Services

Protection against the most severe federal farm penalty.

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Wetland Determination Appeals

We challenge incorrect NRCS wetland determinations using historical evidence, soil data, and hydrology analysis.

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Violation Defense

If you’ve received a violation notice, we pursue all available defenses — good faith, minimal effect, prior converted status, and appeal of the underlying determination.

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Compliance Planning

Before you tile, drain, or alter any field, we help you understand wetland boundaries and compliance obligations to avoid triggering a violation.

2 Common Myths

Myth: “I can’t fight a Swampbuster violation — the government always wins.”

Reality: Not true. NRCS determinations can be challenged and overturned. We’ve helped farmers get wetland classifications reversed through evidence-based appeals. The government makes mistakes, and the appeals process exists for a reason.

Myth: “I’ve been farming this ground for 30 years — they can’t call it a wetland now.”

Reality: They can — unless you have documentation showing the area was converted before December 23, 1985 (“prior converted” status). If you can prove prior converted status, the area is exempt from Swampbuster. Historical aerial photos and farming records are critical evidence.

What Our Clients Say
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Sandramere Seed & Supply Co. profile picture
Sandramere Seed & Supply Co.
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Kole helped us develop HR documents and create some customer forms for our business. Kole really helps put legal language in understandable form. We really appreciate his thorough nature and ability to ask the right questions to uncover issues we had not considered. His agricultural knowledge is extremely valuable. Thanks Kole! We really appreciate you!
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James Jensen profile picture
James Jensen
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Working with Kole was easy and convenient. He answered all our questions and helped us get our trust established quickly.
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Brandon Boardman profile picture
Brandon Boardman
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Kole's personal experience and understanding in agriculture makes him a great attorney for all of your farms estate planning. He's very prompt, professional and he really cares about your needs. What a great guy.
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Mary Mollenhauer
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Working with this firm feels less like hiring a lawyer and more like bringing on a strategic partner for your legacy. They truly understand the complexity of multi-generational farming operations and approach every plan with both precision and long-term vision. For families managing significant agricultural assets, this is exactly the kind of counsel you want in your corner.
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Mitch Mender profile picture
Mitch Mender
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Kole is a bright and compassionate attorney. He knows what he is doing!
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Pooja Vasudev profile picture
Pooja Vasudev
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Kole Pederson walks the walk and talks the talk! As a former aerial applicator, he has fully lived the agricultural life so he is qualified to assist farmers, ranchers, and agricultural business owners with their estate planning/probate, business law, and real estate legal needs. Kole is diligent, resilient, and down to earth with a genuine commitment to help clients. In this day and age, when everything has become less tangible and very technological - Kole is the kind of attorney agricultural folks can benefit from having on their side!
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Matt Snoberger
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Kole was easy to work with and has vast knowledge of agriculture and a lot of common sense. One of the easiest people I’ve ever worked with.
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Flynn Baker profile picture
Flynn Baker
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I have worked with Kole on a legislative and policy committee for a non profit organization. Kole's input was incredibly valuable; especially navigating legal jargon and procedures as well as his attention to detail and timeliness. I am glad to have worked with him and trust his recommendations and actions in legal matters.
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Becky profile picture
Becky
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I was doing an online search for an attorney and ran across Midwest Ag Law. I called and Mr. Pederson actually answered the phone himself, which Never happens these days! Unfortunately, he doesn't do Guardianship cases, but was very kind and went out of his way to give me some referrals!
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Curt Friesen
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Legal work made simple. Very professional firm that delivered everything I needed, when I needed it, and at a reasonable price. Great to work with and will use them again.
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Frequently Asked Questions

I received a Swampbuster violation notice. What do I do?expand_more
Contact us immediately. You have a limited window to request a review. We evaluate the determination, gather evidence, and pursue the strongest available defense.
Can a Swampbuster violation be reversed?expand_more
Yes. The determination can be appealed through NRCS, the State Conservationist, and ultimately the USDA National Appeals Division.
How do I know if I have wetlands on my property?expand_more
Request a certified wetland determination from NRCS before making any drainage improvements. This gives you a definitive map and protects you from future disputes.
Does insurance cover Swampbuster violations?expand_more
No. There is no insurance product that covers the loss of federal farm program benefits due to a Swampbuster violation. Prevention and proactive compliance planning is the only protection.

Don't Risk Your Farm Program Payments

Whether you need a wetland determination appealed or want to plan drainage without triggering Swampbuster, schedule a free consultation.