A group of farm-state senators want to provide some certainty to farmers who operate on land that was converted from a wetland prior to 1985.
Sen. Mike Rounds, R-S.D., has introduced the Farmers Freedom Act of 2025 in an effort to provide a permanent definition of prior converted cropland in federal law. Joining him are fellow Republican senators John Barrasso of Wyoming, John Hoeven of North Dakota, Roger Marshall of Kansas, and Rounds' fellow South Dakotan in the Senate, John Thune, the Senate majority leader.
“What we did was to change and make a modification that basically said any of these lands which had been converted prior to 1985 could remain as cropland and not be subject to WOTUS if they are being farmed one year out of every five,” Rounds explained.
Many of the same sponsors were involved in a similar effort, introduced in December 2023 as the Farmers Freedom Act of 2023.
What is prior converted cropland?
Ever since the Clean Water Act of 1972 defined "waters of the United States, including the territorial seas" as "navigable waters," policy makers and presidential administrations have tossed around rules and regulations to police what those terms mean.
The volleying of policy has led to a current situation where different federal rules are in use in different states while litigation makes its way through the federal court system.
Part of the controversy over WOTUS — especially for states in the Prairie Pothole Region — is the regulation of wetlands and what is considered a wetland. Prairie potholes are depressional wetlands that fill with snowmelt and rain. Some are ephemeral — coming and going when conditions are right — while others are, according to the Environmental Protection Agency description of the landscape, “essentially permanent.” The Prairie Pothole Region includes portions of Montana, North Dakota, South Dakota, Minnesota and Iowa. Portions of the landscape in those states lends itself to the formation of such potholes, which may or may not be considered wetlands and navigable waters under the Clean Water Act.
Whether something is a wetland and connected to a navigable water has been a matter determined by the U.S. Department of Agriculture's Natural Resources Conservation Service. Problems have cropped up over the years when a farmer wants to install drain tile or take other actions in an area the NRCS deems to be a wetland but the producer sees simply as a low spot or puddle.
Adding another wrinkle to the issue is so-called "prior converted cropland" — land on which a wetland may have previously existed but the land was previously converted to cropland, before efforts to stop wetlands from being drained went into effect.
The 1985 farm bill included a conservation compliance provision commonly called Swampbuster to discourage the production of agricultural commodities on converted wetlands. The provision made farmers who convert wetlands to produce agricultural commodities ineligible for participation in USDA farm programs unless wetlands are mitigated or restored. Wetlands that had been converted prior to Dec. 23, 1985 — so-called "prior converted cropland" — were exempt from the provision.
To be considered prior converted cropland, land had to have had at least one crop on it prior to Dec. 23, 1985, and it cannot support woody vegetation or meet the hydrologic criteria for a farmed wetland. Prior converted cropland also has not been subject to regulation under the Clean Water Act.
However, like many parts of the controversy over water regulation in the U.S., the idea of prior converted cropland has been regulated through rulemaking and interpretation of administrations and courts. Under a memo issued in 2022 under the Biden administration, land no longer would be excluded from regulation under the Clean Water Act if it were prior converted cropland that had gone through a "change in use."
According to the memo, the U.S. Army Corps of Engineers and the EPA "view a 'change in use' as an action that would make the prior converted cropland no longer available for the production of an agricultural commodity. For example, commodity crop production could not reasonably be reestablished in an area that has been filled for development, so such an area would have changed use. The Corps and EPA will also interpret agricultural commodities consistent with the USDA definition, which encompasses 'any crop planted and produced by annual tilling of the soil, including tilling by one-trip planters, or sugarcane.'"
“In doing so, they would have put more restrictions on the ability to farm those areas,” Rounds said.
Why 'change in use' could be a problem
Rounds said under the change in use provision that even a temporary "change in use" could cause land to lose its status as prior converted cropland.
“The best thing is it provides some stability with regard to the land that had previously been identified as farmland and that had been protected since it had been converted to farmland before 1985,” Rounds said. “Under the conditions that the Biden administration had proposed, that land, if it could not be continuously used as ag production land, meaning even if you had one year in which you couldn’t keep it in ag production because of water on it, it would then revert back to land that would be subject to waters of the U.S. and that meant basically you weren’t going to be able to farm it in the future.”
Rounds said redefining the term prior converted cropland in law would provide stability for farmers and ranchers. The legislation also would expand the definition of what cropland is, to include other lands like pasture ground.
“Making it broader so that more types of actual farming practices would still qualify and keep them out of the definition of Waters of the United States and subject to basically EPA regulation,” Rounds said.
The legislation is also endorsed by the both the South Dakota and American Farm Bureau.
“It fits our policy … it just gives farmers certainty, if you lose that exemption on that prior converted crop land, you might have to drive around again. If they won’t let you touch it, it’ll become a pothole and probably get bigger and wetter, and that causes all kinds of problems too,” said Scott VanderWal, president of South Dakota Farm Bureau.
He explained that farming around wetlands — including land that would have been prior converted cropland were it on for a change in use — can be difficult.
“If you have to turn around in the middle of a field, it affects your efficiency. It’s hard on equipment because farmers want to plant as close to a muddy spot as they can. There’s no reason to regulate that, because before 1985, they were not telling us we couldn’t do that,” VanderWal said. “That exemption needs to be in place.”
VanderWal said it is a property rights issue.
“Because if those were converted back before 1985, they shouldn’t be regulated,” VanderWal said. “Farmers need security and confidence that something like that isn’t going to jeopardize their farm payments or things like that. They need to know that things are going to be regulated in a consistent way. That’s what this is about.”
Rounds said it's an issue that he has heard remains a concern from many people.
“Farmers simply want to do the work on the land. They want to take care of their land, and they just simply don’t need to have the federal government directly involved in the day-to-day operations of their farming operations,” Rounds said.