Property

Unidentified drones flying over property have raised many concerns recently, but new laws in Ohio may ease those concerns. The new laws aim to enhance safety, protect privacy, and align state laws with federal regulations for “unmanned aerial vehicles” (UAVs), or “drones.” Passed late last year as H.B. 77 and effective on April 9, 2025, the new laws amend Ohio’s aircraft safety laws to prohibit operating UAVs in certain ways and also address local government use and regulations for UAVs.
Legal definition of UAV
A UAV, according to the new law, is commonly referred to as a drone and is a vehicle that does not carry a human operator, is operated without the possibility of direct human intervention from within or on the vehicle, uses aerodynamic forces to provide lift, can fly autonomously or be piloted remotely, and is either expendable or recoverable. The law clarifies that a satellite is not a UAV.
Prohibited drone operations
The law establishes four prohibited actions by UAV operators in Ohio and sets penalties for violating the prohibitions:
- Knowing endangerment. A person shall not operate a UAV “on the land or water or in the air space over this state in a manner that knowingly endangers any person or property or purposely disregards the rights or safety of others.” A violation of this provision can result in a $500 fine and/or up to six months of imprisonment.
- Interference with law enforcement and emergency responders. The law prohibits operating a drone in a way that disrupts, interrupts, or impairs the operations or activities of law enforcement, fire department, or emergency medical services. Criminal misdemeanor or felony charges are possible, depending on whether the interference was committed knowingly or the result of recklessness.
- Operation over critical facilities. Two new provisions apply to “critical facilities,” which includes hospitals that receive air ambulance services; military installations; commercial distribution centers; courts, jails, and prisons; and police stations, sheriff’s offices, state highway patrol stations, and premises controlled by the bureau of criminal investigation. The law prohibits a person from operating a drone to photograph, record, or loiter over or near a critical facility in two situations. The first situation is operating a drone with the purpose of tampering with or destroying the facility and the second is operating a drone to further another criminal offense involving harm to a person. Violations of these laws can lead to criminal misdemeanor and felony charges, depending on the operator’s intent and whether the action is a repeated violation.
- Compliance with federal law. The new law ties into federal law and regulations that require registration of UAVs and licensing for certain UAV operators. Ohio law prohibits a person from operating a UAV in Ohio if those federal laws or FAA regulations would prohibit the operation, which allows the state to enforce the federal law requirements.
Local governments and drones
Another provision of the new law provides authority to municipalities, counties, townships, and park districts. These local governments can now adopt local ordinances or regulations for UAVs in two situations: for hobby or recreational uses of drones above a park or other public property and for the use and operation of drones by the local government.
What do the new laws mean for agriculture? The laws place new responsibilities on drone operators to use drones responsibly and for legitimate purposes while providing remedies for those whose safety or privacy are endangered by drone operations. In those situations, a person should contact local law enforcement. Federal law requires registration and “Remote ID” tracking technology for UAVs, which can allow identification of the drone operator from an on-the-ground transmitter. With the new laws, there are now legal options for pursuing enforcement against bad actors. Local governments can also now enact additional laws to ensure safe drone operation in their public areas.
What the laws don’t do is authorize the “shooting down” of suspicious drones. It is a federal crime to shoot or intentionally harm a drone, even if the drone is flying over someone’s private property. Shooting a drone from the sky can also create safety risks and potential civil liability. Read more about options for dealing with suspicious drone activity in our previous blog post.
Information about House Bill 77 is available on the Ohio General Assembly’s website.
Part 3 in our series on Carbon Capture and Storage
As expected, proposed legislation to allow for carbon capture and storage wells (CCS) was introduced this week in the Ohio General Assembly. The legislation opens the door for CCS underground injection wells to store captured carbon dioxide in “pore space” or cavities far beneath the land’s surface. As we explained in Part 1 and Part 2 of our CCS series, CCS technology removes carbon dioxide from the atmosphere to reduce greenhouse gas emissions and can also trigger final production in an oil or gas field. If passed, the new law would affect agricultural landowners, who could be asked to lease their “pore space” for CCS projects.
The identical CCS bills introduced in the Ohio House of Representatives and Senate are H.B. 170, sponsored by Rep. Monica Robb Blasdel (R-Columbiana) and Rep. Bob Peterson (R-Sabina) and S.B. 136, sponsored by Sen. Tim Schaffer (R-Lancaster) and Sen. Brian Chavez (R-Marietta). The proposal varies in several places from a bill introduced late last year, the result of “fine tuning” by interested parties over the winter, according to Rep. Blasdel.
The proposed legislation includes clarification of the pore space property interest, a regulatory framework and fees for injection wells, consolidation or “pooling” provisions, well closure procedures, and liability provisions for carbon dioxide migration.
Clarification of “pore space” as a real property interest
Currently, Ohio does not have statutory laws that recognize pore space as a real property interest. The proposal would change that by recognizing that the owner of surface lands and water also owns “all pore space in all strata below the surface lands and waters.” The definition of “pore space” is “subsurface cavities and voids, whether natural or artificially created, that are suitable for use as a sequestration space for carbon dioxide.”
The proposal also addresses conveyancing of pore space, stating that a conveyance of surface ownership also conveys the pore space interest unless the pore space is expressly reserved or severed from the surface interest. This means a landowner could sever pore space rights and convey those separate from the surface, as Ohio law currently allows with minerals. A severed pore space interest would have priority over the surface interest. The proposal also addresses the relationship with mineral interests, stating that severed mineral or oil and gas interests would be dominant over pore space rights.
Regulatory framework for CCS injection wells
The proposed legislation would place state regulatory authority over CCS storage facilities in Ohio’s Division of Oil and Gas Resources Management in the Ohio Department of Natural Resources (ODNR). Note that the federal Safe Drinking Water Act also requires CCS injection wells to have a Class VI injection well permit from the U.S. EPA, although with the passage of the proposed bills, Ohio hopes to receive approval from the EPA to administer the state’s Class VI permit program.
The bills directs ODNR to adopt rules for CCS. At a minimum, the rules must include:
(1) Requirements for the operation and monitoring of a carbon dioxide well;
(2) Safety concerning the drilling and operation of a carbon dioxide well;
(3) Spacing, setback, and other provisions to prevent storage facilities and storage operators from impacting the ability of owners of oil and gas interests to develop those interests;
(4) Protection of the public and private water supply, including the amount of water used and the source or sources of the water;
(5) Fencing and screening of surface facilities of a carbon dioxide well;
(6) Containment and disposal of drilling and other wastes related to a carbon sequestration project;
(7) Construction of access roads for purposes of the drilling and operation of a carbon dioxide well;
(8) Noise mitigation for purposes of the drilling of a carbon dioxide well and the operation of such a well, excluding safety and maintenance operations;
(9) Liability insurance to pay damages for injury to persons or property caused by the construction or operation of the storage facility;
(10) Liability insurance coverage of at least fifteen million dollars to cover bodily injury and property damage caused by the construction, drilling, or operation of wells, including environmental coverage.
(11) A surety bond sufficient to cover corrective actions, plugging, post-injection site care prior to receipt of a certificate of project completion, and emergency or remedial response.
The proposed law also states that ODNR may require a CCS storage well operator to deploy a seismicity monitoring system to determine seismic activity in the carbon storage area and requires a well operator to show that owners of oil and gas will not be adversely affected by the well. Both the well operator and the well owner would pay fees to ODNR for the amount of carbon dioxide stored in the well.
Consolidation or “pooling” of pore space
If a well operator can’t obtain the consent of all pore space owners within a proposed storage area, the legislation would allow the operator to apply for “consolidation” if the operator has consent from at least 75% of the pore space owners. The remaining percentage of pore space owners could be “forced” into the project if ODNR determines that the consolidation is “reasonably necessary to facilitate the underground storage of carbon dioxide.” Provisions would also address how to compensate the pore space owners.
Well closure
After carbon injections into a storage facility have ended and a period of 50 years passes, a storage operator may apply for a certificate of closure. If the operator can establish full regulatory compliance and that there is no potential of migration or threat to public health or the environment, the state may issue a certificate of project completion that releases the operator from regulatory requirements and transfers the primary responsibility and liability for the stored carbon dioxide to the state. An operator could remain liable, however, under several circumstances, such as criminal acts, providing deficient or erroneous information, or violating duties.
Liability
The proposal clearly protects owners of pore space and owners of surface or subsurface property interests from liability relating to the injection of carbon dioxide into a storage facility. It also limits any claims for damages against a storage operator to instances where the claimant can prove that the carbon dioxide injection or migration obstructed the free use of property, or caused direct physical injury to an individual, animal, or real or personal property. The bill prohibits awarding of punitive damages if the storage operator acted in compliance with the required permit, and limits damages for personal or real property to the “diminution” or loss of value of the property.
How will the legislation affect agricultural landowners?
Our next article in the Carbon Capture and Storage series will focus on issues agricultural landowners need to consider if the CCS legislation passes. Watch for Part 4 on CCS soon, along with continued updates on the progress of Ohio's CCS legislative proposals.
Tags: carbon capture and storage, CCS, carbon dioxide, pore space
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Drones, or more accurately named Unmanned Aerial Vehicles (UAVs), have helped provide new methods of pesticide applications and agronomic data collection to assist farmers with productivity and efficiency. Yet the possibility of unknown drones flying over a farm property can cause concerns. Recent conversations and sightings of drones in rural areas have producers raising questions such as “what can I do about suspicious drone activity” and “can I shoot down a drone over my property?” Federal and state laws provide answers to these questions. Here are several points farmers need to know about dealing with UAVs traveling over their properties.
1. Shooting a drone is a crime under federal and state laws. Federal law prohibits a person from intentionally harming UAVs and other aircraft. It is a federal felony to willfully “damage, destroy, disable, or wreck any aircraft,” and the federal government has prosecuted persons for doing so. The potential punishment can be severe: a fine of up to $250,000 and twenty years of imprisonment. Ohio law also establishes a crime for “endangering aircraft.” A person who knowingly discharges a firearm, air gun, or spring-operated gun at or toward any aircraft can be subject to misdemeanor or felony charges, fines, and imprisonment, depending upon the risk of harm resulting from the endangerment.
2. Shooting a drone can create safety risks and potential civil liability. The Federal Aviation Authority (FAA) and other aviation professionals warn against the unintended consequences of injuring an airborne drone. Once disabled, a UAV is no longer under the control of an operator and will eventually crash. Some compare an injured drone to a “missile” that can harm people, animals, and property upon impact. A recent case in Florida illustrates this danger, with a child suffering serious harm when a drone crashed and struck him. A person who intentionally harms a drone not only creates this safety risk, but also opens up the possibility of being liable for injuries caused by the drone or its debris. Additionally, the owner of the drone may seek compensation for the loss of the aircraft.
3. The recommended action is to report suspicious drone activity. If a UAV poses a danger, an observer should report it right away to local law enforcement or the county Emergency Management Agency, who can investigate the situation. It’s helpful to share location information and videos and photos of the aircraft. If a drone doesn’t pose an immediate danger but appears to be operated in violation of FAA rules, an observer can report the activity to the nearest FAA flight standards district office. There are FAA district offices in Cincinnati, Columbus, and Cleveland. Contact information is available on the FAA website.
4. Federal laws require registration and tracking technology for drones. A drone owner must register the aircraft with the FAA and provide the owner’s address, e-mail, and telephone information along with the model and serial number for the UAV. The FAA issues an information or “N-number” the owner must display on the vehicle, and the agency also provides an online tool for looking up an aircraft by its N-number. An additional FAA rule also requires a registered drone to have “Remote ID” technology. A Remote ID acts as a drone’s “digital license plate” by broadcasting a signal identifying the drone, its location, and the location of its control station. The registration and Remote ID requirements increase the likelihood that law enforcement or the FAA can ascertain who owns or is operating the aircraft.
5. New laws for UAVs will soon be effective in Ohio. While the federal government has sole authority to regulate UAVs, states can also enact drone laws as long as they don’t conflict with the federal regulations. The Ohio legislature recently did so, enacting a bill last December with requirements and prohibitions on private use of drones. The new law, which is not effective until April 9, 2025, will prohibit a person from operating a UAV “in a manner that knowingly endangers any person or property or purposely disregards the rights or safety of others.” The penalty for a violation includes a fine of up to $500 and imprisonment of up to six months. The new law offers another reason to report suspicious drones, and its penalties could help reduce potentially harmful drone activity.
It can be unnerving and threatening to see an unknown drone flying over one’s property, but shooting at the drone is not a viable solution to the concern. An injured UAV can harm people and property. A shooter could not only be liable for that harm but could also face criminal felony and misdemeanor charges for endangering or harming aircraft, along with hefty fines and imprisonment penalties. The preferred solution for dealing with drone activity is to report it to local law enforcement or the FAA. Taking action quickly could result in identification of the owner and an explanation of the drone’s activities. If that activity is suspicious or endangering, federal and state laws can penalize the offender and eliminate the drone activity.

Part 2 in our series on Carbon Capture and Storage
If you’re a landowner, you may hold a valuable property interest that is gaining attention across the country: pore space. Pore space is the empty space between the particles of soil, sand, rock, and sediment beneath the surface of your land. It’s a geological formation that, if large enough, can store gas, brine water, and similar substances. Why the recent interest in pore space? It’s a necessity for Carbon Capture and Storage (CCS)—a technology that removes carbon dioxide (CO2) from emission sources and stores it in pore space far beneath the land’s surface.
We began this series on CCS with an overview of the technology and why it’s gaining traction in Ohio. See our first post on the Ohio Ag Law Blog. This second post focuses on legal issues related to pore space. The capacity to store CO2 in the pore space beneath the surface is a property interest that may have value to landowners—one that could be sold or leased to another party for CCS or other storage purposes. But before pore space transactions occur in Ohio, the General Assembly must address a few legal issues: clarification of pore space ownership, whether and how pore space interests can be severed and conveyed, and the relationship between a severed pore space interest and surface and mineral interests. Here’s why these are important legal needs.
- Ownership of pore space. A golden rule of property law partly answers the issue of pore space ownership in Ohio: the “ad coleum” doctrine. The doctrine states that the owner of land owns the rights above and below the land, from the sky to the earth’s core. The assumption under this common law rule, then, is that a landowner owns all subsurface pore space. But what if the pore space is created as a result of a particular activity, like mining? While a few court cases in Ohio have followed the ad coleum doctrine and recognized pore space ownership as an attribute of surface ownership, there have been inconsistent court rulings on the question of ownership of pore space resulting from mining activities. The rulings drive a need for the Ohio legislature to clarify pore space ownership issues, first by codifying the ad coleum doctrine and stating that a surface owner also owns the pore space beneath the surface. Second, statutory law could state whether the surface or mineral owner holds the right to pore space resulting from mineral extraction. If Ohio follows the general rule on mineral extraction adopted among other states, Ohio law would state that the surface owner retains the right to pore space after minerals are fully extracted.
- Severance, conveyance, and recording of pore space interests. Can a surface owner sever the rights to pore space and convey the interest to another party, as Ohio law allows with mineral interests? That’s another legal question in need of clarification in Ohio. The legislature could establish the right to sever pore space and adopt the same conveyancing and recording standards we utilize for tracking other property interests in Ohio.
- Conflicts with other property interests. Can pore space owners interfere with mineral and surface ownership interests by taking actions such as establishing a CCS well on the surface to store CO2 in the pore space? Which property interest has priority over the others if there is a conflict? Our courts can address legal questions as they arise but the Ohio legislature has the power to clear up the relationship between these property interests through statutory law. In particular, Ohio law should establish the priority of rights between the surface, pore space, and mineral interests and answer which is dominant over another when there is a conflict.
Will the legislature tackle these pore space issues that arise with the potential of CCS in Ohio? Possibly, but probably not until the next legislative session begins in January. There are currently proposals in both chambers of the legislature that simply declare an “intent to regulate carbon capture and storage technologies and the geologic sequestration of carbon dioxide for long-term storage,” House Bill 358 and Senate Bill 200, but those bills do not yet contain any detailed language and they will die if not passed by year’s end. With few days remaining in the legislative session this year, the bills are not likely to see any action. There will likely be new versions of the bills introduced next year, however, if the interest in CCS in Ohio continues. Hopefully, the proposals will answer our legal questions about pore space as a property interest of Ohio landowners.
Tags: pore space, CCS, carbon, carbon capture, carbon injection, carbon lease, carbon sequestration
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Co-authored by Tyler Zimpfer, Law Fellow, National Agricultural Law Center
Many in Ohio agriculture are familiar with the terms “carbon sequestration” and “carbon credits.” The terms relate to efforts to reduce carbon in the atmosphere by capturing or “sequestering” the carbon. Ohio farmers have taken advantage of their ability to sequester carbon through practices like conservation tillage and cover crops, thus exchanging carbon sequestration practices or the generation of carbon credits for cash payments.
Now an additional form of carbon sequestration is emerging: Carbon Capture and Storage (“CCS”). CCS is a carbon sequestration technology that industries with large carbon dioxide (CO2) emissions are using to reduce their carbon “footprint.” CCS technology captures CO2 from airborne emissions and injects it into geologic formations beneath the land surface. Because CCS requires land and can reduce the “carbon index” of products like ethanol, the technology has implications for Ohio agriculture.
In this first post on CCS, we’ll lay out the background of CCS and what’s driving interest in it. Future posts will explain legal hurdles for bringing CCS to Ohio, how CCS relates to ethanol and the potential growth of the sustainable aviation fuels market, and how Ohio landowners could be affected by CCS.
What is Carbon Capture and Storage?
CCS is a process that captures carbon dioxide from an emitting source and permanently stores it underground in geologic formations referred to as “pore space.” Though some are hearing of CCS for the first time, CCS technology has existed for decades, as have many studies on its safety, sustainability, and the amount of carbon that can be stored in different formations and regions. The Environmental Protection Agency (“EPA”) finalized a rule regulating geologic sequestration in 2010 pursuant to the agency’s authority under the Safe Drinking Water Act.
CCS involves three separate steps – capture, transport, and storage. CO2 is captured and separated from other gases at industrial facilities or directly from the atmosphere. After captured, the CO2 is then compressed for transportation. The compression forces the CO2 to act like a liquid. CO2 is most commonly transported via pipelines but can also be moved by ship to offshore wells. Once the CO2 arrives at the intended destination, it is injected into rock formations, often a mile or more underground, where it spreads throughout the pore space of the formation in a plume. The CO2 is then permanently stored in the geological formation. CCS technology is also used for “enhanced oil recovery,” because CO2 injection can recover untapped oil reserves in a partially-depleted oil field. When used for enhanced oil recovery and storage, the technology is referred to as “carbon capture utilization and storage” or CCUS. The image below illustrates different types of CCS.
Source: Congressional Budget Office
Regulation of CCS wells
CO2 injection wells are regulated under the federal Safe Drinking Water Act by the EPA through the Underground Injection Control (UIC) Program. The category of wells relevant to CO2 for geological storage is “Class VI” wells. The primary purpose of the Class VI regulations is to protect underground sources of drinking water and prevent leakage, explosions, and contamination. Much attention is currently focused on CCS technology due to a recent Archer Daniels Midland (ADM) suspended the injection of CO2 at a site in Illinois after discovering a potential leak due to corrosion in a monitoring well. While there is no report of water contamination, the EPA found ADM violated federal safe drinking water rules by failing to follow an emergency response plan after detecting the leak.
Why so much interest in CCS?
CCS is expected to be an important strategy of industries that struggle with decarbonization or net-zero greenhouse gas emission goals. CCS can reduce CO2 emissions for hard-to-abate sectors that don’t have other methods for reducing their emissions, such as refineries and cement, steel, and chemical manufacturing
A more recent (and arguably more prominent) factor driving CCS is the current federal tax incentive. The 2022 Inflation Reduction Act (IRA) expanded the tax credit known as “Section 45Q,” first enacted in 2008 and extended in 2018. A company that captures and stores a certain threshold of CO2 every year is eligible for the tax credit. The IRA made several changes to the Section 45Q tax credit to further promote CCS and make it more lucrative and accessible, such as increasing the value of the credit by 70% to $85 per metric ton; lowering the annual capture amount required for eligibility by at least 50% for most facilities; and allowing transferability of the tax credit. With the significant changes in the IRA, researchers expect an increase in CCS projects across the United States.
Can we do CCS in Ohio?
No, not without legislation. Two legal changes are necessary to enable CCS technology in Ohio. (1) Ohio law must define and clarify property rights to the pore space in geological formations beneath land surfaces, and (2) the state must allow the establishment of CCS injection wells in Ohio. We'll explain these two requirements in our next post in this series on CCS.
For more background information on CCS and Section 45Q, see:
- Congressional Research Service, Carbon Capture and Sequestration (CCS) in the United States, https://crsreports.congress.gov/product/pdf/R/R44902
- Congressional Budget Office, Carbon Capture and Storage in the United States, https://www.cbo.gov/publication/59832#_idTextAnchor007
- Ohio Department of Natural Resources, Carbon Capture, Utilization, & Storage, https://ohiodnr.gov/discover-and-learn/safety-conservation/about-odnr/geologic-survey/energy-resources/carbon-capture-utilization-storage
- Congressional Research Service, The Section 45Q Tax Credit for Carbon Sequestration, https://crsreports.congress.gov/product/pdf/IF/IF11455
Tags: carbon capture, CCS, sequestration, 45Q, pore space, carbon injection, carbon storage
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Ohio’s Wild, Scenic, and Recreational Rivers Program will soon see some changes under Senate Bill 156, recently passed by the Ohio General Assembly. The legislature forwarded those changes to the governor on July 16. Governor DeWine is expected to sign the bill, which had unusually high non-partisan support with only one legislator voting against the measure.
The legislature’s focus on the Wild, Scenic, and Recreational Rivers Program began with concerns from owners of private land that abuts watercourses designated under the program as wild, scenic, or recreational. Ohio currently has 15 designated watercourses comprising 27 stream segments and just over 830 river miles. Many of the designated watercourses are along agricultural lands.
Those landowner concerns initiated a program review and led to the revisions enacted by the legislature in S.B. 156, which makes the following changes.
- Transfers the authority to administer the program from the Division of Parks and Watercraft to the Division of Natural Areas and Preserves (DNAP) in the Ohio Department of Natural Resources (ODNR).
- Narrows DNAP’s scope of authority to the watercourses that are designated as wild, scenic, and recreational rivers, rather than to wild, scenic, and recreational river “areas” as under the current law.
- States that a watercourse designation does not affect private property rights or authorize the Director of Natural Resources, DNAP Chief, or any governmental agency or political subdivision to restrict the use of private land adjacent to a designated river.
- States that the law does not give any right to the above parties to enter upon private land.
- Expands the types of watercourses subject to designation as a wild, scenic, or recreational river to include the headwaters of those rivers.
- Requires DNAP to perform certain duties regarding publicly owned land along a designated river, including both of the following:
- To adopt rules governing the use, visitation, and protection of scenic river lands and other specified publicly owned lands administered by DNAP within the watersheds of wild, scenic, and recreational rivers; and
- To establish facilities and improvements within the system of wild, scenic, and recreational rivers, scenic river lands, and other specified publicly owned lands that are necessary for their visitation, use, restoration, and protection and that do not impair their natural character.
- Requires the DNAP Chief to adopt rules establishing fees and charges for the use of facilities in nature preserves, scenic river lands, and on publicly owned lands.
- Clarifies that certain public entities must obtain approval from the ODNR Director if specified construction activities are performed within 1,000 feet of a wild, scenic, or recreational river.
- Requires the ODNR Director to post the intention to declare a watercourse as a wild, scenic, or recreational river on DNAP’s website.
- Allows the DNAP Chief to accept, receive, and expend gifts, devises, or bequests of money, land, or other properties for purposes of the wild, scenic, and recreational river program.
Learn more about S.B. 156 on the Ohio legislature’s website. Information on Ohio’s Scenic Rivers Program is on ODNR’s website.
Tags: water law, scenic rivers, ODNR, Property Rights
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Applying Ohio’s “agricultural exemption” from zoning is a constant challenge for county and township zoning officials. A township in Logan County faced that challenge when a landowner claimed its composting facility to be an agricultural land use that is exempt from township zoning authority. After obtaining a composting permit from the Ohio EPA, the landowner established the compost facility, despite the township’s disagreement that the facility qualified for the “agricultural exemption.”
When there is uncertainty about the meaning or application of a law such as the Logan County zoning situation, Ohio law allows a county prosecutor to request a legal opinion from the Ohio Attorney General (Ohio AG). That’s exactly what the Logan County Prosecuting Attorney did, directing four questions to the Ohio AG that relate to how township zoning regulations, the agricultural exemption, and state permitting laws apply to the compost facility. The Ohio AG’s resulting opinion offers helpful guidance for rural zoning officials who face the challenge of understanding whether a land use is an agricultural land use that is exempt from zoning. It also provides an explanation of the relationship between state issued permits and local zoning authority.
Here’s a summary of the Ohio AG’s response to the questions the Logan County prosecutor raised.
1. Is a compost facility considered “agriculture” that is exempt from township zoning under the agricultural exemption, and if not, is it subject to township zoning?
Logan County didn’t receive a definitive answer to this question. Instead, the Ohio AG explained that it does not have the authority to answer a question of fact. It is the township zoning officials who must determine whether land is “agriculture” for purposes of the agricultural exemption, based upon the facts of the specific situation. In doing so, the township may exercise its discretion and examine any factors necessary and relevant to making its decision, including the nature and character of all activities conducted on the land as well as activities to prepare an agricultural product that are not conducted on the land at issue, and the township’s decision is subject to judicial review.
The Ohio AG did, however, provide a useful summary of the agricultural exemption provisions in Ohio Revised Code sections 519.01 and 519.21, which apply to townships, as follows:
- ORC 519.01 provides a definition of “agriculture” as “farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; and the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.”
- The opinion explained that the terms “in conjunction with” and “secondary to” in the emphasized language above carry common meanings: “in conjunction with” means “occurring together” and “secondary to” means “of second rank, importance or value.” Because “composting” is not specifically listed in the agriculture definition, it must be done “in conjunction with” and “secondary to” the production of the agricultural products used for the composting. The Ohio AG stated that, “If the composting facility is located on land that does not engage in agri-cultural activity, composts agricultural products that are not produced on its premises, or does not use the compost on its premises, then the composting facility is likely not “agriculture” pursuant to R.C. 519.01.”
- ORC 519.21(A) contains the limitation on power that is the agricultural exemption: “the Revised Code confers no power on any township zoning commission, board of township trustees, or board of zoning appeals to prohibit the use of any land for agricultural purposes or the construction or use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located . . . and no zoning certificate shall be required for any such building or structure.”
- The Ohio AG explained that taken together, ORC 519.01 and ORC 519.21(A) require that land on which the secondary agricultural activities of processing, drying, storage, and marketing of agricultural products occurs or land on which a building or structure is located must “be primarily used for an agricultural purpose to qualify for an exemption from the township zoning resolutions.” Conversely, agricultural activities that are merely an accommodation to a business are not “agriculture” under ORC 519.01 and could be regulated as a commercial use under township zoning regulations.
2. Can township zoning resolutions regulate composting facilities by considering such as a “conditional use” if the zoning resolution does not explicitly address composting as a permitted or conditional use?
A simple explanation by the Ohio AG answered this question. According to Ohio law, A township may only regulate a non-agriculture composting facility as a conditional use if the township zoning resolution includes composting or solid waste facilities as permitted conditional uses in the applicable zoning district.
3. What recourse does a township have if a composting facility claims to be exempt from zoning due to the agricultural exemption, even though composting is not included in the agricultural exemption statute?
For a violation of a zoning resolution or a question regarding the interpretation of a township zoning resolution, the Ohio AG explained that a township may choose to utilize the remedies outlined in ORC 519.23 and ORC 519.24. Those remedies include a criminal cause of action and fines or an action to enjoin or abate a violation.
4. Does a township have any recourse if the Ohio Environmental Protection Agency (Ohio EPA) issues a permit for a composting facility when a property owner failed to secure a local zoning permit?
In response to this question, the Ohio AG explained that while some laws do preempt local authority over a land use, the state solid waste laws do not “supersede the authority of a township to enact zoning regulations.” This means that a township is not required to permit a facility simply because the Ohio EPA issues a permit for it. The Ohio AG concluded that if a township determines that a composting facility is not “agriculture” and not exempt from zoning under the agricultural exemption, that facility then would be subject to the township zoning regulations and Ohio EPA composting facility regulations.
Read Ohio Attorney General Opinion No. 2024-004 in the Opinions Database on the Ohio Attorney General’s website.
Tags: Zoning, agricultural zoning, agricultural exemption, compost
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With Memorial Day behind us, the unofficial start of summer is here, and we are back to bring you another edition of the Ag Law Harvest. In this Harvest we discuss OSHA’s proposed workplace heat hazard standards, DOL’s new H-2A Farmworker rule, an interesting income tax credit in Colorado, and a proposal to limit Ohio property tax increases.
OSHA Advances Proposed Rule to Mitigate Workplace Heat Hazards.
The U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) announced that it is advancing a proposed rule to mitigate workplace heat hazards, following unanimous approval from an advisory committee. The rule aims to protect workers from heat-related illnesses and fatalities, particularly in agriculture. While OSHA works to finalize the proposed rule, OSHA “continues to direct significant existing outreach and enforcement resources to educate employers and workers and hold businesses accountable for violations of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1) and other applicable regulations.” Assistant Secretary for Occupational Safety and Health Doug Parker explained that as OSHA moves through the regulatory process, “OSHA will use all of its existing tools to hold employers responsible when they fail to protect workers from known hazards such as heat. . .” Since 2022, OSHA's National Emphasis Program has conducted nearly 5,000 inspections to proactively address heat-related hazards in workplaces with high heat exposure. The agency prioritizes inspections in agricultural industries employing temporary H-2A workers, who face unique vulnerabilities. Employers are reminded that they are legally required to protect workers from heat exposure by providing cool water, breaks, shade, and acclimatization periods for new or returning workers. Training for both workers and managers on heat illness prevention is also essential.
Department of Labor Finalizes and Publishes Rule Enhancing Protections for H-2A Farmworkers.
The U.S. Department of Labor (“DOL”) announced a final rule to strengthen protections for H-2A farmworkers. The new rule titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States” includes the following provisions:
- Adding new protections for worker self-advocacy: The final rule enhances worker advocacy by expanding anti-retaliation protections and allowing self-organization and concerted activities. Workers can decline attending employer-led meetings that discourage union participation. The rule permits workers to consult legal and other key service providers and meet them in employer-furnished housing. Additionally, workers can invite guests, including labor organizations, to their employer-provided housing.
- Clarifying “for cause” termination: The final rule clarifies that a worker is not “terminated for cause” unless the worker is terminated for failure to comply with an employer’s policies or fails to adequately perform job duties in accordance with reasonable expectations based on criteria listed in the job offer. Additionally, the rule identifies five conditions that must be met in order to ensure that disciplinary and/or termination processes are justified and reasonable: These five conditions are: (1) the worker has been informed, in a language understood by the worker, of the policy, rule, or performance expectation; (2) compliance with the policy, rule, or performance expectation is within the worker’s control; (3) the policy, rule, or performance expectation is reasonable and applied consistently to H-2A workers and workers in corresponding employment; (4) the employer undertakes a fair and objective investigation into the job performance or misconduct; and (5) the employer corrects the worker’s performance or behavior using progressive discipline.
- Seat Belts: Any employer provided transportation must have seat belts if the vehicle was manufactured with seat belts. All passengers and the driver must be wearing seat belts before the vehicle can be driven.
- Ensuring timely wage changes for H-2A workers: The final rule establishes that the effective date of updated adverse effect wage rates is the date of publication in the Federal Register.
- Passport Withholding: The final rule prohibits an employer from holding or confiscating a worker’s passport, visa, or other immigration or government identification documents. An employer may, however, hold a worker’s passport for safekeeping only if: (1) the worker voluntarily requests that the employer keep the documents safe; (2) the employer returns the documents to the worker immediately upon their request; (3) the employer did not direct the worker to submit the request; and (4) the worker states, in writing, that the three conditions listed above have been met.
The final rule is effective on June 28, 2024. However, the DOL has made it clear that H-2A applications filed before August 28, 2024, will be subject to the current applicable federal regulations. Applications submitted on or after August 29, 2024, will be subject to the new rule. For more information, visit the DOL’s “H-2A Employer’s Guide to the Final Rule ‘Improving Protections for Workers in Temporary Agricultural Employment in the United States.’”
Colorado Establishes State Income Tax Credit for Qualified Agricultural Stewardship Practices.
Beginning in 2026 Colorado farmers and ranchers will be able to qualify for an income tax credit for actively engaging in conversation stewardship practices. The newly enacted legislation creates three different tiers of income tax credits.
- Tier 1: A state income tax credit equal to at least $5 and no more than $75 per acre of land covered by one qualified stewardship practice, up to a maximum of $150,000 per tax year.
- Tier 2: A state income tax credit equal to at least $10 and no more than $100 per acre of land covered by two qualified stewardship practices, up to a maximum of $200,000 per tax year.
- Tier 3: A state income tax credit equal to at least $15 and no more than $150 per acre of land covered by at least three qualified stewardship practices, up to a maximum of $300,000 per tax year.
However, only $3 million worth of tax credits can be issued in one tax year. Any claims for the tax credit beyond the $3 million dollars are placed on a waitlist in the order submitted and a certificate will be issued for use of the agricultural stewardship credit in the next income tax year. No more than $2 million in claims shall be placed on the waitlist in any given calendar year. Additionally, only one tax credit certificate may be issued per qualified taxpayer in a calendar year, and the taxpayer can only claim the credit for up to three income tax years.
Ohio House of Representatives Proposes Joint Resolution to Limit Property Tax Increases for Ohio Property Owners.
The Ohio House of Representatives have proposed to enact a new section in Article I of Ohio’s Constitution. Section 23 would limit property tax increases on Ohioans. Under the proposed change, the amount of real property taxes levied on a parcel of property cannot exceed the amount of tax levied on that parcel in the preceding year plus the rate of inflation or four percent, whichever is lower. There are some exceptions that allow a one-time increase in property tax liability in excess of the four percent limit. The exceptions include: (1) when a parcel is divided; (2) the expiration of a tax exemption, abatement, or credit that applied to the parcel in the preceding year; or (3) when a building is completed or significantly improved and is added to the tax list on the parcel. We will continue to closely monitor how the proposed resolution fares in committee and beyond. If the resolution passes both chambers of the Ohio Legislature, the proposed change would be voted on in the November 5, 2024, election.
Tags: OSHA, Department of Labor, H-2A, Income Tax, Colorado, Ohio, property tax
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Many of Ohio’s farm markets, u-picks, farm petting zoos, and other “agritourism” operations are preparing to open for their spring and summer activities. While these types of agritourism activities are popular, they raise unique liability concerns. That’s because there is always the risk of an injury or harm when bringing people onto the farm, whether allowing them to be near animals, riding on equipment, in crop and orchard areas, or engaging in physical activities. Along with readying the farm for the new season, agritourism operators should also plan for the possibility of a liability incident.
Here are five actions agritourism providers can take to manage liability risk.
- Conduct a safety review. Inspect your operation with visitor safety in mind. Remember, many visitors have never been on a farm or don’t understand what might harm them on a farm. Examine all areas visitors will be in, including surrounding “off limits” areas visitors might try to access, and identify any possible safety hazards. Pay extra attention to areas children will use. Consider these questions:
- Are the facilities, fences, gates, steps, play areas, and other structures in good repair?
- Are doors and gates working and latching properly?
- Are pesticides, herbicides, or chemicals out of sight and inaccessible?
- Are animal enclosures sound, do any “dangerous” animals need to be fully off limits to visitors, and are there handwashing stations near animal contact areas?
- Are there any accessible dangers that might attract children, such as ladders, equipment, lagoons, large tractor tires, and wells?
- Are parking areas and walkways sufficiently sized and buffered from traffic?
Look for the potential dangers, then take actions such as making repairs; installing blockades, fences, locks, or other structures to keep visitors away; putting up signs and warnings; providing instructions or maps; expanding parking areas or walkways; and removing unnecessary dangers.
- Complete our Agritourism Ready course. Be prepared for the possibility of an emergency situation—both natural and man-made disasters can raise the need for an emergency response. How an operation responds to an emergency can reduce harm to visitors and ultimately affect the operation’s risk of liability or harm. OSU offers a curriculum that helps agritourism operations reduce risks by developing an emergency management plan. Access this valuable and free resource at https://u.osu.edu/agritourismready/.
- Train employees. A business is legally responsible for the negligence of its employees, so it’s important to reduce the risk that an employee’s actions will cause or contribute to a visitor’s harm. Provide thorough safety training to agritourism employees. Make sure employees know how to do the job, including activities like operating equipment, maintaining and cleaning visitor areas, handling animals, overseeing children, and responding to a safety incident.
- Obtain agritourism insurance coverage. Insurance is an excellent liability management tool. But be aware that a typical farm insurance policy does not cover agritourism activities, and a separate endorsement or policy may be necessary. Even if a farm has a separate endorsement for agritourism, it’s still important to ensure that any new agritourism activities fall under the agritourism coverage. Now is the time to schedule a visit with the insurance provider and review the insurance policy. Don’t be secretive about what you’re doing in your operation. Share all activities with the provider and ensure that each activity is covered by the policy. If an activity is not covered or will require costly additional coverage, weigh the risk, costs, and benefits of continuing to offer the activity.
- Install the Ohio agritourism immunity sign. I’ve been surprised recently by how many operations I’ve visited that do not have an agritourism immunity sign on display. Posting the sign is a critical risk management tool. That’s because Ohio law provides civil immunity for qualifying agritourism providers if a visitor suffers harm or injuries due to the “inherent risks” of being on a farm. To receive the immunity, however, an agritourism provider must post the required agritourism immunity sign at the entrance to or near the agritourism activities. The agritourism immunity sign warns visitors that the operation is not liable for harm from inherent risks and that they are assuming the risk of participating in agritourism activities. But while it’s an important tool, don’t let the sign replace all of the other recommendations provided in this article. Read more about the immunity law and the agritourism immunity sign in our law bulletin, Ohio’s Agritourism Law, available on farmoffice.osu.edu.
Agritourism is a thriving industry in Ohio. Taking legal precautions to manage liability risk will help ensure that agritourism remains an important component of Ohio agriculture. To learn more about legal issues in agritourism, visit OSU’s Agritourism Law Library on the Farm Office website at farmoffice.osu.edu/law-library.
Tags: agritourism, liability, immunity
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The Ohio General Assembly is back in Columbus after the March 19th primary election, and committee schedules are already filling up. Given the increased activity in recent weeks, we thought it was a good time to examine what has happened legislatively this year up until this point.
H.B. 64—Eminent Domain. This bill was first introduced by Representatives Kick (R-Loudonville) and Creech (R-West Alexandria) in February of 2023. The bill’s purpose is to make it more difficult for governmental agencies or private entities to take private property through eminent domain. On February 6, 2024, the bill was updated with a Substitute House Bill 64 in the House Civil Justice Committee.
The previous version of the bill excluded recreational trails from the definition of “public use,” meaning that property could not be taken by a government agency for recreational trails. The current version of the bill narrows this language, allowing for a taking for the purpose of creating recreational trails, but not in cases where the property is not adjacent to a public road and where the property’s primary use will be for a recreational trail.
Another substantial change between the versions involves compensation offers from the government entity to the landowner. In the original version of the bill, a government entity would not have been allowed to reduce an offer made to purchase property before proceedings commenced if the reduction was based on hard-to-discover issues with the property. The current version would exclude this provision, restoring an agency’s authority to reduce offers.
Substitute House Bill 64 would also make changes to compensation and awards landowners could receive if the issue goes to court.
H.B. 197—Solar Development. Sponsored by Representatives Hoops (R-Napoleon) and Ray (R-Wadsworth), H.B. 197 would establish a the community solar pilot program and the solar development program. Under the language of the bill, a “community solar facility” is defined as a single facility with at least three subscribers and a nameplate capacity of 10 megawatts or less, or 20 megawatts or less if on a distressed site. Furthermore, the bill would require The Public Utilities Commission of Ohio (PUCO) to establish a Community Solar Pilot Program of 250 megawatts on sites in the Appalachian region of the state. The bill would also amend the state competitive retail electric service policy to encourage community solar facilities in the state and allow subscribers to community solar facilities to receive monthly electric bill offsets.
H.B. 324—Motor Fuel. Introduced by Representatives McClain (R-Upper Sandusky) and Klopfenstein (R-Haviland) in November of 2023, H.B. 324 passed the House on February 7, 2024 and was referred to the Senate Ways and Means Committee on February 27.
If passed, the bill would authorize a temporary, nonrefundable income or CAT tax credit of 5 cents per gallon for retail dealers who sell high-ethanol blend motor fuel containing between 15-85% ethanol. The tax credit would be limited to five years or to a total of $10 million, whichever occurs first.
H.B. 327—Employee Verification. H.B. 327, introduced by Representatives Wiggam (R-Wayne County), and Swearingen (R-Huron), had its first committee hearing in House Commerce & Labor on February 13, 2024. The bill would require political subdivisions, private employers employing 75 individuals within the state of Ohio, and nonresidential construction contractors to verify each new employee’s work eligibility through the federal E-verify program. E-Verify is an online program that helps employers verify employees’ eligibility for employment. If the bill were to pass, the employer would be required to keep a record of the verification for the duration of the employee’s employment, or three years, whichever is longer. During testimony on the bill, Representatives Wiggam and Swearingen indicated an interest in possibly lowering the employee threshold, citing Florida’s 25 employee threshold.
H.B. 347—Farming Equipment Taxes. This bill was introduced by Representative Don Jones (R-Freeport) and referred to the House Ways and Means Committee in early December of 2023. Since then, the bill has been heard in committee twice, once in January, and once in February, both times without testimony. The bill would change the way farmers claim a tax exemption on certain purchases.
Currently, when an Ohioan engaged in farming, agriculture, horticulture, or floriculture is buying a product for “agricultural use,” they must provide the seller with an exemption certificate. This certificate comes from the Ohio Department of Taxation and relieves the seller of the obligation to collect the sales tax on behalf of the state. However, the Department of Taxation can later determine that the purchase does not qualify for exemption, and then the farmer would be expected to pay the tax.
H.B. 347 would slightly alter this current way of doing things when it comes to the purchase of certain vehicles and trailers. Under the bill, the purchaser could receive an agricultural use exemption for taxes on these vehicles if the purchaser shows the seller copies of the purchaser’s Schedule F—the federal income tax profit of loss from farming form—for three most recent preceding years. Alternatively, a farmer could obtain a certificate from the Department of Taxation verifying that they have filed a Schedule F for three years in lieu of providing the forms directly to the seller. Notably, the bill states that “no other documentation or explanation shall be required by the vendor or the tax commissioner” to prove that the purchase qualifies for the agricultural use exemption.
The following vehicles and trailers would be included under the bill:
- Trailers, excluding watercraft trailers;
- Utility vehicles, (vehicles with a bed, principally for the purpose of transporting material or cargo in connection with construction, agricultural, forestry, grounds maintenance, land and garden, materials handling, or similar activities);
- All-purpose vehicles, (vehicles designed primarily for cross-country travel on land and water, or on multiple types of terrain, but excluding golf carts);
- Compact tractors (garden tractors, small utility tractors, and riding mowers).
H.B. 364—Seed Labeling; Noxious Weeds. Sponsored by Representatives Dobos (R-Columbus), and Klopfenstein (R-Haviland), H.B. 364 had its first hearing in the House Agriculture Committee on February 6, 2024. Specifically, the bill would allow the Ohio Prairie Association and other noncommercial entities sharing seeds to distribute milkweed seeds non-commercially to i members, with the intent of promoting habitats for pollinators like monarch butterflies.
The bill would legally define “non-commercial seed sharing” as the distribution or transfer of ownership of seeds with no compensation or remuneration. Also included in the definition are a list of situations that are not considered “non-commercial seed sharing,” including when:
- The seeds are given as compensation of work or services rendered;
- The seeds are collected outside of Ohio;
- The seeds are patented, treated, or contain noxious weed species or invasive plants.
H.B. 364 also includes a definition of “seed library,” which it defines as a non-profit, governmental, or cooperative organization or association to which both of the following apply:
- It is established for the purpose of facilitating the donation, exchange, preservation, and dissemination of seeds among the seed library’s members or the general public.
- The use, exchange, transfer, or possession of seeds acquired by or from the non-profit governmental, or cooperative organization or association are obtained free of charge.
The bill would further exempt non-commercial seed sharers and seed libraries from labeling, advertising, handling, and sales restrictions under Ohio law.
To further the goal of promoting pollinators and habitats, H.B. 364 would make changes to the requirements for maintaining toll roads, railroads, or electric railways. Current law requires managers of such thoroughfares to destroy a number of noxious weeds along the roadway or in right of ways. The bill would no longer require the destruction of Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, or ironweed.
H.B. 447—Property Tax. Introduced on March 12, 2024 by Representative Loychik (R-Cortland), H.B. 447 was referred to the House Ways & Means Committee on April 2, 2024. The bill would modify and expand property tax homestead exemptions, gradually reduce school districts’ 20-mill floor for tax levies and modify the formula for determining farmland’s current agricultural use value (CAUV). The change to CAUV would involve the calculation of the overall capitalization rate for agricultural land. Current law does not establish a minimum rate, but the bill would do so by stating that overall capitalization rate plus additur shall not be less than 10 percent. Since a higher capitalization rate results in a lower CAUV value and because the current capitalization rate is around 8%, the change would likely lower CAUV values.
S.B. 156—Scenic Rivers. This bill, sponsored by Senators Reineke (R-Tiffin) and Hackett (R-London) passed the Ohio Senate on January 24, 2024, and was referred in the House to the Energy and Natural Resources Committee on February 6, 2024. The bill would transfer the Wild, Scenic, and Recreational Rivers Program from the Division of Parks and Watercraft to the Division of Natural Areas and Preserves (DNAP) in ODNR. The bill would narrow the scope DNAP’s authority to watercourses designated as wild, scenic, and recreational rivers. Currently, the law is written so that the regulatory agency has authority over areas. “Areas” encompass not just the water, but also the land surrounding rivers. On the other hand, “watercourses” are defined as “substantially natural channel[s] that [are] at least five miles in length with recognized banks and a bottom in which the flow or water occurs.” Thus, agency oversight would be diminished from the river and its surrounding area to just confines of the river itself.
The bill also clarifies that a watercourse designation does not affect private property rights adjacent to a designated river.
Finally, the bill would require DNAP to adopt rules for the use, visitation, and protection of scenic river lands and provide for the establishment of facilities and improvements that are necessary for their visitation, use, restoration, and protection, but do not impair their natural character.
S.B. 226—Agricultural Land. S.B. 226 was introduced by Senator Terry Johnson (R-McDermott) in late February and referred to the Veterans & Public Safety Committee on February 27, 2024. The bill would create the Ohio Property Protection Act, which would include protection of:
- Agricultural land, defined as “land suitable for use in agriculture,” including the water on the land, airspace above the land, and natural products and products from the land;
- Any land located within a twenty-five-mile radius of any installation under the jurisdiction of the United States Armed Forces;
- Any land located within a twenty-five radius of a critical infrastructure facility.
To protect property in the above categories, the bill would make it illegal for the following people and entities to acquire or purchase such property:
- Those persons and foreign adversaries listed on a registry compiled by the Ohio Secretary of State;
- A government of a foreign adversary;
- An individual who is a citizen of a foreign adversary;
- A business that is headquartered in a foreign adversary;
- A business that is directly or indirectly owned or controlled by one or more of the above persons and entities; and
- An agent, fiduciary, or trustee of the above persons and entities.
Tags: Ohio legislation, Ohio legislature, eminent domain, ethanol, solar, sales tax, foreign land ownership, cauv, property tax, scenic rivers
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