Property
The Ohio General Assembly wrapped up its legislative session for the year last week, with much of the late-session energy given to property tax relief. The legislature focused on strategies for reducing Ohio property taxes in five bills it just sent to the Governor (see our earlier post). None of the bills addressed farmland taxation, however. But a bill the legislature might consider when it returns in 2026 does propose changes to Ohio’s Current Agricultural Use Valuation (CAUV) Program for farmland property taxes. H.B. 575, introduced by Rep. David Thomas (R-Jefferson) and Bob Peterson (R-Sabina) proposes a number of revisions to the CAUV program.
H.B. 575 doesn’t propose reductions to CAUV taxes, however. Instead, the bill contains changes to how the CAUV program works. The bill is consistent with plans in Ohio’s House for continuing to address property taxes. Rep. Bill Roemer (R-Richfield), chair of the House Ways and Means Committee where H.B. 575 now sits, stated that the five recently passed bills represented most of the “big structural changes” to property taxation and that the legislature’s future focus will be on “fairness and efficiency.” Sponsor Rep. Thomas agreed, stating that “the changes that need to happen now are about the process, helping taxpayers through the process and transparency.” Process and transparency are two themes in H.B. 575’s revisions. Here’s what the bill proposes to change about Ohio’s CAUV program.
Process changes:
- Removes the annual renewal requirement for CAUV. A landowner would not have to submit a renewal each year after initial approval to enroll in the CAUV program.
- Requires county auditors to provide for electronic filing of CAUV enrollment applications.
- Allows a single operation with non-contiguous land in two or more counties to file one application for all parcels in the county where a majority of the land exists.
- Requires that property tax bills separately state the “CAUV savings” for the parcel.
- Mandates that a county auditor must provide notice of the soil types and CAUV values to landowners in reappraisal and update years.
- Allows the county auditor to value residential property and wasteland below the CAUV value.
Eligibility changes:
- Authorizes continued CAUV eligibility for tracts or portions lying idle or fallow in the previous year due to state or federal disaster or state of emergency declarations.
- Allows CAUV eligibility for contiguous land that is incidental to the primary use of the land for agricultural purposes, including areas for driveways, access roads, staging, barns, and farm markets.
- States that the CAUV minimum acreage requirement can include non-contiguous tracts that are part of a single operation within one or multiple counties.
While the proposed changes won’t affect the CAUV formula or reduce CAUV taxes, the revisions in H.B. 575 do solve many of the fairness and efficiency problems we see with Ohio’s CAUV program. But it may take legislators a while to get to the CAUV bill. It’s one of dozens of bills waiting for consideration by the House Ways & Means Committee. Even so, let’s hope 2026 brings changes to CAUV in the New Year.
Read H.B. 575 on the Ohio General Assembly’s website.
On November 20 of this year, the U.S. EPA and Army Corps of Engineers submitted a proposed rule which would once again redefine the term “Waters of the United States,” or WOTUS, under the federal Clean Water Act.
WOTUS woes
In 1972, Congress passed amendments to existing water pollution law, resulting in the federal Clean Water Act (CWA). Ever since the CWA’s passage in the 1970s, there has been debate over which waters fall under the definition of “waters of the United States” and are subject to federal regulation. The classification of WOTUS is controversial because if a body of water is defined as a water of the United States, the farmers, ranchers, businesses, and other property owners who own the land where the water is located are subject to additional regulations meant to keep the water clean. The fight over the definition of WOTUS eventually made it to the Supreme Court in the early 2000s, and the Court issued tests for determining whether certain bodies of water fell under WOTUS. This was followed by rulemaking from the Obama, Trump, and Biden administrations. The Obama administration took a broad view of which waters the federal government had jurisdiction over, whereas the first Trump administration significantly narrowed the definition. The Biden administration proposed a rule that fell somewhere in between the previous administrations’ definitions of WOTUS. In 2023, the Supreme Court once again took up the issue in the case Sackett v. EPA, limiting the number of wetlands that qualify as WOTUS. The newly proposed rule is the latest in the on-going back and forth between court rulings and presidential administrations on how to tackle the definition of WOTUS. For more background on the WOTUS saga, see our numerous blog posts on the topic, available here.
Newly proposed rule open for public comment
The Trump administration’s newly proposed WOTUS rule was published in the Federal Register late last month. The text of the rule is available here, with the discussion of the revised definition beginning on page 52514 of the Federal Register, or page 6 of the linked PDF document. As with the rule submitted in the first Trump administration, the proposed rule would narrow the definition of WOTUS, resulting in fewer waters being subject to the CWA.
The public has the opportunity to submit comments on the proposed rule through January 5, 2026. To submit a comment, go to the Federal Register site for the proposed rule, available here, and click on the “Submit A Public Comment” button, highlighted in green near the top right-hand side of the page.
Providing relief for rising property taxes has been top of mind in the General Assembly this past year. Two weeks ago, the legislature passed four bills meant to tackle this issue. The bills, which each take different approaches to lowering property taxes, are now awaiting consideration by Governor DeWine. But how would each bill address property taxes?
House Bill 129—School District Millage
House Bill 129, available here, was introduced by Representative David Thomas (R, Jefferson). In Ohio, we collect property taxes in units of measure called “mills.” Each mill is equivalent to one-tenth of a cent. In the late 1970s, the Ohio General Assembly passed the “20 mill floor” for school districts, which was meant to guarantee districts a baseline of funding.
However, under current law, not all school district levies count toward the 20-mill floor, which can result in higher property taxes. H.B. 129 would change this by including emergency, substitute, incremental growth, conversion levies, and the property tax portion of combined levies when calculating the 20-mill floor for school districts. The thought is that including more types of levies in the 20-mill floor will reduce property tax rates in school districts with these additional levies. For some more background on school districts and the 20-mill floor, Ohio’s Legislative Service Commission (LSC) has a brief on the subject, available here.
House Bill 186—School District Revenue
House Bill 186, sponsored by Representatives James Hoops (R, Napoleon) and David Thomas (R, Jefferson) also focuses on the 20-mill floor for school districts. The bill, available here, would create a tax credit which would prevent increases in school district property taxes from exceeding the rate of inflation. This would only apply to property owners in a school district on the 20-mill floor. LSC’s analysis of the bill, available here, includes helpful examples of how the tax credit would work.
H.B. 186 also modifies property tax “rollbacks” for residential property, which would ultimately increase the total rollback, or savings, for owner-occupied homes, while eliminating the rollbacks for all other residential property.
House Bill 309—County Budget Commissions
House Bill 309 takes a slightly different approach to lowering property taxes by revising the authority and rules for county budget commissions. Sponsored by Representative David Thomas (R, Jefferson), the bill’s text is available here.
County budget commissions are made up of the auditor, treasurer, and either the prosecuting attorney or tax commissioner in each county. If passed, H.B. 309 would allow county budget commissions to reduce millage on any voter-approved levy if the commission deems the revenue is “unnecessary” or “excessive.” This authority to reduce millage on levies would not include debt levies. Further, county budget commissions would not be permitted to reduce a school district’s operating levy below the 20-mill floor, or to reduce any levy collected below the previous year’s revenue unless they are able to offset the reduction using reserve balances, nonexpendable trust funds, or carryover amounts.
House Bill 335—Property Tax Overhaul
Finally, House Bill 335 was also introduced by Representative David Thomas (R, Jefferson). H.B. 335, available here, would limit inside millage collections to the rate of inflation. This would be accomplished by requiring county budget commissions to adjust the rate of each inside millage levy during the reappraisal of all real property performed every six years under Ohio law, or during the update, which occurs every three years. To see some examples of this language in action, see the LSC’s analysis of the bill, available here.
What’s next?
Each of these four bills aimed at lessening the burden of property taxes have been delivered to Governor DeWine, and await his signature before they can become law. We will certainly keep you updated on what happens with each bill. In the meantime, if you’d like more information about property taxes in Ohio, the Ohio Department of Taxation has a great informational guide here.
A trio of senate bills related to agriculture were introduced in the Ohio General Assembly this month. The bills touch on a variety of topics, from CAUV recoupment charges, to training an agricultural workforce, to creating a state food and agriculture policy council.
Senate Bill 285, available here, was introduced by Senator Tim Schaffer (R-Lancaster) on October 8 and referred to the Senate Ways and Means Committee. The bill would exempt certain conservation uses from recoupment charges when land is converted from an agricultural use. Typically, if agricultural land is converted to another use, it is subject to a recoupment charge equal to the previous three years of tax savings it received because it was valued using its current agricultural use value (CAUV). SB 285 would not require a recoupment charge to be paid if the agricultural land is acquired by a conservation organization and is used for certain environmental response projects related to water quality or wetlands, or if it is used for an H2Ohio water project. That being said, if the land ceases to be used for conservation, recoupment charges would apply. SB 285 had its first hearing in the Senate Ways and Means Committee on October 28.
Sponsored by Senator Paula Hicks-Hudson (D-Toledo), SB 287, entitled “Farming And Workforce” was introduced on October 8, and had its first hearing in the Senate Finance Committee on October 28. The bill, which is available here, would create the Farming and Workforce Development Program. This program would provide training for Ohio residents between 16 and 35 years of age to prepare them for employment in seasonal crop farming. The program would not exclude people who have been convicted or pled guilty to a felony from eligibility. The bill would require Ohio State University Extension and Central State University Extension to develop guidelines and policies for the application process, coursework, and running of the Farming and Workforce Development Program, and would appropriate $500,000 from the state general revenue fund to get the program started.
Finally, Senate Bill 288 was also introduced on October 8. Also sponsored by Senator Hicks-Hudson, the bill, available here, would create the Ohio Food and Agriculture Policy Council. The Council would be tasked with making recommendations to the General Assembly that strengthen Ohio’s food and farm economies, engaging in advocacy, education, and policy work for the health of Ohio’s citizens and the sustainability of the state’s natural resources. Specifically, the Council would be charged with delivering an annual report to the General Assembly detailing its recommendations on:
- Food security;
- Food access;
- Food production and distribution;
- Food waste;
- Economic development;
- Food procurement;
- Food chain workers; and
- Food systems resilience.
The Council would be housed under the Ohio Department of Agriculture (ODA). The Director of ODA would serve on the council, as well as the following members, who would be appointed by the Governor:
- One member who is a representative of the Ohio Hospital Association;
- One member from Ohio State University Extension;
- One member from Central State University Extension;
- Three members from Ohio Farm Bureau;
- One member who represents urban farming;
- One member who represents rural farming;
- One member who represents statewide food banks; and
- One member who is a registered lobbyist representing Ohio Cooperatives.
Senate Bill 288 would appropriate $500,000 to create the Ohio Food and Agriculture Policy Council and has been referred to the Senate Finance Committee.
Be sure to stay tuned to the Ag Law Blog for continuing updates on Ohio Legislation affecting agriculture!
Tags: Ohio legislation, conservation, H2Ohio
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A bill authorizing the capture and storage of carbon dioxide via underground storage wells has passed the Ohio House of Representatives. The nearly unanimous vote by the House now advances H.B. 170 to the Ohio Senate.
We’ve reported previously on the prospect of Carbon Capture and Storage (CCS) coming to Ohio. CCS is one part of a strategy to reduce airborne CO2 emissions. It’s of high interest to hard-to-abate emission sources, such as ethanol, steel, chemical, and concrete production facilities. Rather than reducing the CO2 in their emissions, CCS allows such sectors to capture CO2 from emissions and store the CO2 in pore spaces far beneath the land’s surface. But landowners must be willing to lease their “pore space” for CO2 storage. If passed, then, CCS legislation will create pore space leasing opportunities and challenges for Ohio landowners.
Refer to our Ag Law Blog posts explaining CCS and discussing how CCS requires landowners to lease “pore space.” We also reviewed the first CCS bills in Ohio, proposed last legislative session, in a third blog post. Those bills did not pass, and H.B. 170 represents a new version of the proposals, developed after additional consideration by interested parties.
What’s in H.B. 170?
H.B. 170 sets up a state regulatory framework that authorizes the storage of capture carbon dioxide into subsurface “pore space” via Class VI injection wells, which are regulated by the U.S. EPA under the federal Safe Drinking Water Act’s Underground Injection Control Program. The bill addresses several
- Agency authority and rules. Delegates regulatory authority over CCS to the Ohio Department of Natural Resources Division of Oil and Gas Resources Management and directs the Chief to adopt rules that carry out the legislation.
- “Pore space” interests. Defines “pore space” as the subsurface cavities and voids that are suitable for use as storage areas for CO2, outlines procedures for severing and conveying pore space, clarifies the relationship between pore space, surface rights, and mineral interests, and limits the liability of pore space owners for the injection of CO2 into their pore space.
- CCS projects. Lays out the components of “carbon sequestration projects,” which includes “storage facilities” operated by “storage operators” who inject CO2 into pore space via injection wells.
- “Pooling” of pore space. Authorizes the pooling or “statutory consolidation” of pore space for carbon sequestration projects if the storage operator obtains the consent of owners of at least 70% of the pore space and establishes rights and responsibilities for statutory consolidation.
- Project completion and closure. Provides procedures for “certificates of project completion” that apply to the closure of storage facilities and a transfer of responsibility and liability to the State.
- Fees and penalties. Establishes fees for storage facilities and funds to pay for current and post-closure care program costs and sets civil and criminal penalties for violation of CCS regulations.
- Limitations on damages. Limits claims for damages dues to injection or migration of CO2 to claims that establish direct physical injury to persons, animals, or property, limits claims to diminution of value caused by the injection or migration and prohibits punitive damages in such cases.
What’s next for CCS?
The Ohio Senate now has its turn to consider H.B. 170. The Senate President referred the bill to the Senate Energy Committee, which already has a CCS bill before the committee. The Senate’s version of CCS, S.B. 136, was introduced last March but has not received any hearings.
S.B. 136 mirrors the version of H.B. 170 first introduced in the House. But amendments to H.B. 170 occurred in the House Natural Resources Committee that created differences between the two bills. It will be up to Energy Committee Chair Brian Chavez to determine which bill to advance, if any.
For a comparison of the original introduced bills (H.B. 170 and S.B. 136) and the substitute bill for H.B. 170 that passed the House of Representatives, refer to this synopsis by the Legislative Service Commission that highlights the differences.
H.B. 170 is a step toward “primacy”
Ohio is already on its way toward seeking approval from the U.S. EPA to regulate Class VI injection wells within the state, a concept referred to as “primacy.” State-based regulation of the well permitting program would speed up the permitting process for CCS, according to proponents of primacy. However, the state regulatory program must be at least as stringent as federal requirements before the U.S. EPA will delegate the Class VI program to the state. H.B. 170 and its resulting regulations will be reviewed by the U.S. EPA when Ohio submits its application for primacy to the U.S. EPA.
To date, only five other states have obtained primacy over Class VI wells. Six other states are currently in the process of applying for such approval. By obtaining primacy, Ohio could be ahead of many states in encouraging CCS development, proponents state.
Implications for Ohio landowners: pore space leasing
We’ve heard that some companies are already out with offers of “pore space leases” to Ohio landowners. Some are offering around $25 per acre for the right to use pore space for CCS. But now is the time for caution. The legislation is necessary to clarifying legal interests in pore space and how CCS development will occur in Ohio—both important issues landowners need to know before entering into pore space leases. A third important issue in need of clarification is the value of pore space, and it’s still too early to have firm answers to that question. Experience from oil and gas leasing teaches us, however, that early lease payment offers tend to be lower than later offers.
Landowners who want to move forward now on pore space leases, however, would be wise to work with an attorney. Some attorneys across the state are already reviewing and negotiating pore space leases on behalf of the landowners. Contact the agricultural law team for help with identifying attorneys knowledgeable in this area.
Watch for more resources on CCS and pore space leases coming to our program soon.
Tags: CCS, carbon capture and storage, carbon sequestration, class VI injection
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Are you a new owner of farmland? Whether inheriting or purchasing farmland for the first time, a new farmland owner must choose what to do with the land. Farm it, sell it, lease it, preserve it — all are viable options that require an understanding of economic considerations and legal requirements.
Our upcoming webinar for the National Agricultural Law Center can help. Join me and Robert Moore on October 15, 2025 at Noon EST as we present "So Now You Own a Farm: A Beginner's Guide to Farmland Ownership."
Based on our recently published Beginner’s Guide to Farmland Ownership, this webinar will provide practical insights and strategies on new farmland ownership. We'll cover topics such as:
- Estimating the value of farmland;
- How to sell, lease, manage, or preserve the land;
- Protecting the farmland from risk.
The session can help both new farmland owners and the professionals who advise them better navigate the responsibilities, options, and decision-making that comes with farmland ownership. Register for the free online webinar at https://nationalaglawcenter.org/webinars/beginners-farmland-ownership/.
Tags: beginning farm, beginning farmer, farmland ownership, new farm, new farmer
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The warm, dry, windy months of October and November are upon us, and they bring increased fire risk across Ohio. That’s why Ohio law prohibits all open burning from 6 a.m. to 6 p.m. during October and November. The risk of fire spreading is high during those times and volunteer firefighters with daytime jobs aren’t readily available to respond to the higher fire risk.
Given current drought conditions across Ohio, any open burning at any time is highly dangerous and not advised; waiting to burn in Winter is the best strategy. But Ohio law does allow farmers and farmland owners to burn “agricultural waste” after 6 p.m. in October and November under certain conditions. Some burns may require prior permission or notification to government entities, and burning some substances is illegal due to the environmental harms they cause, such as food waste and materials containing rubber, grease, asphalt and petroleum.
Burning agricultural wastes. Ohio law allows the burning of “agricultural wastes,” which are any waste materials generated by crop, horticultural, or livestock production practices such as woody debris and plant matter from stream flooding, bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities. But note that:
- Agricultural waste does not include buildings; dismantled or fallen barns; garbage; dead animals; animal waste; motor vehicles and parts thereof; or "economic poisons and containers," unless the manufacturer has identified open burning as a safe disposal procedure.
- Agricultural waste does not include "land clearing waste," which is debris from the clearing of land for new development for agricultural, residential, commercial or industrial purposes. Burning of “land clearing waste” requires prior written notification to Ohio EPA.
- If an agricultural waste pile is greater than 20 ft. wide x 10 ft. high (4,000 cubic feet), permission from Ohio EPA is necessary.
The burning location matters. Agricultural waste must be burned on the property where it was generated. It is illegal to take agricultural waste to a different property for burning. It is also illegal to receive and burn agricultural waste from another property. Other laws regulating the location of the burn include:
- A burn must be located more than 1,000 feet from any neighboring inhabited building.
- Burning inside a “restricted area” requires providing a ten day written notice to Ohio EPA. A restricted area is any area inside city or village limits, within 1,000-feet of a city or village with a population of 1,000 to 10,000, or within one-mile zone a city or village with a population of more than 10,000.
Local laws matter too. A local government can also have laws that regulate burning activities, so it’s important to check with the local fire department to know whether any additional regulations apply to a burn.
How to manage the burn. Ohio open burning laws impose practices a person must follow when conducting open burning, which includes:
- Remove all leaves, grass, wood, and inflammable materials around the burn to a safe distance.
- Stack waste to provide the best practicable condition for efficient burning.
- Don’t burn in weather conditions that prevent dispersion of smoke and emissions.
- Take reasonable precautions to keep the fire under control.
- Extinguish or safely cover an open fire before leaving the area.
The risks of violating open burnng laws. Violating state and local open burning laws creates several risks for farmers and farmland owners. First is the risk of enforcement by the Ohio Division of Forestry and local law enforcement, which can result in third degree misdemeanor charges, penalties of up to $500, and a potential of up to 60 days of jail time, depending on the seriousness of the violation.
Enforcement by the Ohio EPA is also possible. The EPA has the authority to issue fines of up to $1,000 per day per offense for an illegal burn. According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes,” such as tires and plastics, failing to meet the 1,000 foot setback requirement, and burning waste from another property. EPA enforcement officers regularly patrol their districts, investigate fires they see, and investigate complaints from neighbors or others who report burning activities, so “getting caught” is quite possible.
Most important, however, is the risk of harm to people and property if a burn goes wrong. It’s possible for a fire to escape and burn unintended property, interfere with people, animals, crops, or buildings, or reduce roadway visibility and cause accidents. These situations can easily lead to insurance claims or lawsuits. Because the risk of such harm is high in October and November, waiting until winter to burn agricultural waste is an excellent risk management strategy.
To learn more about Ohio’s open burning laws, visit the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/air-pollution-control/permitting/open-burning.
“Do your due diligence” is the lesson learned from a recent Ohio appeals court decision in a case alleging that a seller fraudulently induced a buyer in a real estate transaction. The Seventh District Court of Appeals rejected the buyer’s claim, stating that the doctrine of caveat emptor or “let the buyer beware” negated the fraudulent inducement argument because it placed a duty on the buyer to examine all “conditions open to observation.” The court reasoned that the buyer could not blame the seller for fraud because the buyer had the duty to examine public records that provided accurate information about the property.
The case
The conflict arose from the purchase of 143 acres of land in Belmont County, negotiated by two attorneys representing the parties. The buyer was present throughout the negotiations and read all of the e-mail correspondences between the two attorneys. The parties agreed to a purchase agreement, the buyer ordered a title search for the property, and the purchase took place. The buyer later learned, however, that a third party held an easement and right-of-way on the property. The easement allowed surface activities such as locating pipelines and well pads and restricted some development activities by the buyer.
After learning of the easement, the buyer filed a lawsuit claiming fraudulent inducement by the seller. A fraudulent inducement claim arises when someone uses a misrepresentation to persuade another to enter into an agreement. The buyer argued that the seller was fraudulent because the seller’s attorney never mentioned the easement during the purchase negotiations. The trial court agreed and determined that through misstatements and concealment, the seller had committed fraud that was “aggravated, egregious and/or reckless.”
The Court of Appeals disagreed. The court explained that, despite the seller’s actions, the doctrine of “let the buyer beware” obligated the buyer to investigate and examine “discoverable conditions” about the property. The easement was discoverable, as it had been recorded in the county public records. Because the easement information was readily available and the buyer had the opportunity to investigate it, the buyer could not successfully claim fraudulent concealment, the court concluded. According to the court, the buyer could not justify reliance on the seller’s omissions about the easement when the easement itself was a public record that was available to the buyer.
What does this decision mean for property transactions?
We’re back to “do your due diligence.” For property purchases, due diligence is the process of investigating and evaluating the property before finalizing the sale. A purchase agreement should include adequate time for due diligence after initial terms are agreed upon. During the due diligence period, a buyer can take a number of actions to evaluate whether or how to proceed with the purchase, such as:
- Complete visual and physical inspections of the land and buildings.
- Verify who holds ownership interests in the property.
- Determine if there are any easements, deed restrictions, covenants, severed mineral rights, pipelines, leases or other types of legal interests and limitations.
- Identify zoning and access regulations that apply to the property.
- Investigate environmental issues.
- Identify availability of water and utilities.
Additional inquiries might be necessary, depending on the type and intended use of the property. Hiring an attorney and other professionals can ensure that due diligence is thorough and tailored to the type of property at issue.
The time and cost of due diligence might be painful, but the doctrine of “let the buyer beware” demands it. As the Court of Appeals stated, “a seller of realty is not obligated to reveal all that he or she knows. A duty falls upon the purchaser to make inquiry and examination.”
Read the Seventh District’s opinion in Durr Farms, LLC v. Siltstone Resources, LLC on the Ohio Supreme Court’s website at https://www.supremecourt.ohio.gov/rod/docs/pdf/7/2025/2025-Ohio-1942.pdf.
Tags: property law, contract law, due diligence, buyer beware, caveat emptor, easement
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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.
Read an update on the progress of Ohio's CCS legislative proposals in Part 4 of our CCS series here.
Tags: carbon capture and storage, CCS, carbon dioxide, pore space
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