Property

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.

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

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.

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.

1. 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.

2. 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/.
3. 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.
4. 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.
5. 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.