State Water Regulations Worse Than WOTUS, Farmers Claim

Removal of 18 small thorny locust trees along this ditch line brought the weight of the state down on Steven Slonaker’s farming operation.

In March 2020, a state conservation officer walked into Steve Slonaker’s Indiana farm office, issued cease-and-desist instructions, and levied a fine for environmental violations during a three-hour stay. Slonaker’s transgression? He removed roughly 18 small thorny locust trees on his farm without a government permit that were not in a wetland. Welcome to the flex of bureaucratic muscle.

What starts with a pencil ends with expanded power, according to Slonaker. “It’s right in front of your eyes,” he says. “Government agencies make regulatory changes and steadily increase control of private land. It’s critical for farmers to pay attention because this puts agriculture at risk.”

1-Year For 2-Day Job

Urban creep rubs against Slonaker’s Centerville operation in east-central Indiana. Roughly 30 houses sit a stone’s throw from his farmland—his drainage is their drainage. He is the outlet. In 2020, when the 40-year farming veteran removed 18 diminutive trees along an eighth of a mile on one side of a county legal drain on his property to improve area drainage and improve neighborhood water quality, he unknowingly triggered the ire of the Indiana Department of Natural Resources (DNR). Slonaker’s ditch renovation was reported to DNR by a whistleblower who hinted at destruction of owl or avian habitat—a false claim.

The 18 trees were not in a wetland, according to a soil and conservation district review. Didn’t matter. Slonaker obtained Wayne County Drainage Board approval prior to his ditch work. Didn’t matter. He repaired a portion of the same ditch three years earlier. Didn’t matter. He repaired erosion damage to the ditch and improved water quality. Didn’t matter. However, he was in breach of DNR regulations. That mattered.

According to DNR, Slonaker potentially needed permits from the Indiana Department of Environmental Management, Amy Corps of Engineers, Wayne County, or the town of Centerville—and DNR. Additionally, Slonaker was told to notify all 20-plus surrounding homeowners and landowners by certified mail and wait 21 days for their responses to DNR.

Slonaker paid the $145 fine, plus an additional $200 for the permit process, and spent 40 hours online filling out the paperwork. The regulatory details stunned Slonaker, and his email exchange with DNR made clear the state’s position, as shown in a March 6 message to Slonaker from engineer Suzanne Delay of DNR’s Compliance & Enforcement Section. She wrote: “As we discussed, cutting and removal of woody debris and trees is allowed without a permit. But you may NOT remove the stumps or root balls, nor dig out any limbs or fallen trees that have become embedded into the ground or stream without a permit.”

Four months later, Slonaker’s permit was granted. After an additional seven months of waiting for opportune ground conditions, Slonaker completed the ditch work in less than two days. Essentially, a one-year wait for a two-day job.

DNR’s oversight was only beginning. Slonaker was required to plant approximately 100 trees, along with native grasses two-tenths of an acre at his own expense—$1,000. Additionally, he was required to report to DNR for three years on the progress of the new trees and grasses.

“This is how DNR wants to treat agriculture in Indiana?” Slonaker asks. “All because I wanted to do a conservation project on my own land to improve drainage and water quality by taking out a few thorny locust trees that prevented mowing and conservation ditch maintenance? This was a stewardship and safety issue for my family and also benefited the property of many neighbors.”

With four decades under his agriculture belt, Slonaker speaks plainly: “This is all rooted in DNR’s revised floodplain maps and enhanced enforcement of regulations they implemented in 2019, out of the public eye. DNR wants control of every stream and ditch on private land.”

“Spin, Unworkable, Impractical”

In 2019, a year before Slonaker was penalized for removing 18 trees, DNR issued updated floodplain maps and enhanced landowner regulations. The revised DNR floodplain acreage was larger than FEMA’s federal coverage and the DNR landowner rules were stricter than federal WOTUS decrees. Indiana landowners received no notice of the regulatory expansion.

DNR Regulations on Farms — In 2017, Slonaker completed conservation renovations on both sides of this ditch without incident, prior to increased enforcement. (Photo courtesy of Slonaker Farm Management)

In a nutshell, DNR outlawed dirt disturbance within the floodplain. “We’re talking about onerous regulations on maybe 1 million acres of land not covered by FEMA, and that may include land a quarter mile away from any water on my farm,” Slonaker explains. “The DNR update included 18,000 miles of rivers, creeks, or ditches—many of those are new and not covered by FEMA.”

“If your land is in the floodplain, you can’t remove a stump or embedded tree limb, that may not even be near any water, without DNR permission,” Slonaker continues. “You can’t build a cattle fence or disturb the grade of the earth without DNR permission. No farm construction, excavation, or fill-in without DNR approval. To do any of those, it’s a four-month wait for the permit process. Anyone remotely associated with agriculture knows this is not reasonable. Not even WOTUS and the feds stop you from working on a farm fence, getting rid of a stump, or pulling out embedded limbs.”

DNR did not respond to Farm Journal interview requests, instead providing an email statement.

For agriculture, no permit is needed when planting and harvesting crops and maintaining pastures in floodways (unless the activities involve the placement of a permanent structure, obstruction, deposit or excavation); reconstruction and maintenance projects on streams and drains less than 10 miles in length; and construction and maintenance projects on bridges in rural areas.

DNR will soon implement a general license that allows Hoosiers to complete further routine maintenance on property in the floodway, including removing trees, maintaining channels, and streambank reconstruction, repair and stabilization. We’re looking forward to launching this license to reduce the risk for property damage and loss of life due to flooding, while again limiting the regulatory burden on all Hoosiers.

DNR’s statements are “spin, unworkable, and impractical” and do no match up with landowner testimony, Slonaker insists. “Right now, I know a top cattleman who’s been waiting over four months to get a permit for a standard fence to keep cattle away from a stream. Also, the 10-mile rule is only for non-regulatory county drains. It seems my drain—open ditch—example in 2020 is subject to five agency reviews even though it was approved by the county and less than 10 miles in length. In 2021 over 75 farmer petitions were sent to the governor's office asking for reform.”

(Gov. Eric Holcomb’s office did not respond to Farm Journal calls or emails regarding DNR, floodway expansion, and regulatory increases.)

Local, Local, Local

Max Smith grows corn and soybeans in Wayne County. After serving as county commissioner in the 1980s and 1990s, as well as a county plan commission member in the late 2010s, he now serves as a county councilman. “Something has gone terribly wrong when a farmer has to get a permit and wait at least four months to clean sediment out of a ditch,” Smith says.

DNR’s 2019 floodplain expansion and regulatory increase was par for the course, he contends. “DNR slowly takes away our rights as farmers with no consequences. These flood maps were expanded and drawn up without public notification or comment. DNR knows better than to let the public in on how they operate. In most cases, local governments knew nothing until the rules were in place. Even FEMA makes sure to conduct public hearings and landowner notification. DNR does nothing but issue directives from Indianapolis without farmers or any landowner knowing of regulation changes.”

Five years down the road, or a decade in the future, could DNR again expand the floodplain and tighten regulations? “Absolutely,” Smith says. “Nothing has stopped them so far. They use the buzzword of ‘conservation,’ but are so out of touch with agriculture that they don’t realize farmers are the true conservationists. If we don’t treat our land as conservationists, we don’t have farms in the long-term.”

In Smith’s view, what is the best response to DNR’s insistence on increased centralized power? Local. Local. Local, he emphasizes.

“Don’t tell me this is about protection from flooding, because Indiana is among the lowest flood-risk states in the country. This is about state control. The answer is local control right here on our boards and county commissioners,” Smith contends. “Local. How much power does DNR want, or more importantly, need?”

Slonaker has consulted on and appraised agriculture operations across multiple states since 1986 as owner of Slonaker Farm Management. He represents Friends & Supporters of Indiana Ag and is pressing for changes in 2024 state legislation.

“Our objective is to make Indiana treat farmers like other states do. We want to see Indiana’s Drainage Task Force, created by Senate Bill 85 in 2022, recommend an exemption for normal farming and conservation practices to the governor’s office, just like farmers in surrounding states have,” he says. “Second, how many rural homes are now affected by the new maps? It’s unlikely and maybe impractical to build a barn, garage—or even a doghouse in their new map area.”

“Take a look at our Indiana Drainage Handbook that’s 495 pages. Ohio’s handbook is 161 pages and Michigan’s handbook is 4 pages. That should tell you something.”

Indiana contains roughly 16 million acres of agricultural land that has seen historical improvements in water quality and reduction in erosion, and the state’s farming conservation record is stellar, Slonaker insists. “About 80% of Indiana soybeans are no till and we’ve got cover crops on 1.6 million acres. We are consistently the biggest conservationists in the state—yet we are treated by DNR as the problem.”

“We’re at a point where to improve your farm legal drain created 50 to 60 years ago by the county, you may need five different government reps to physically take a look; you have to notify all neighbors by mail; you have to wait at least four months; and go through more red tape,” Slonaker concludes. “What is the point of having county boards if they have no power? I’m not opposed to DNR because they do many good things, but I feel we need to speak up for agriculture. In this case the reasonable solution is what it’s always been: local.”

For more from Chris Bennett (cbennett@farmjournal.com 662-592-1106) see:

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