solar
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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A long process to update Ohio’s regulations for solar energy facility development has nearly reached its end. On July 20, the Ohio Power Siting Board (OPSB) adopted new rules that include revisions to rules that apply to solar facilities under its jurisdiction—those that have a nameplate capacity of 50 megawatts or more. The rules will next go to the Ohio legislature’s Joint Committee on Agency Rule Review (JCARR) for a final review before they can become effective.
The OPSB began the rules review in 2020. The process included stakeholder meetings, public workshops, a draft proposal of revisions, and a review of comments to the draft rules. Many parties and interested individuals followed the process, and the agency received formal input from 20 parties and over 400 informal public comments. The OPSB recognized that the rules review “inspired a robust discussion from numerous interested stakeholders.”
What are the proposed changes?
OPSB summarizes the rule changes it adopted as follows:
- Public information: Siting project applicants must host two public informational meetings for each standard certificate application. The first meeting will describe the scope of the project. The second meeting, held at least 90 days before an application filing, will focus on the specifics of the application.
- Site grading: Applicants must provide a preliminary grading plan that describes maximum graded acreage expectations.
- Drainage and field tile: Applicants must describe and map field drainage systems and demonstrate how impacts to those systems will be avoided or mitigated, describe how damaged drainage systems including field tile mains and laterals will promptly be repaired to restore original drainage conditions and describe the data sources and methods used to obtain information for field drainage system mapping.
- Vegetation management: Applicants must prevent the establishment and spread of noxious weeds within the project, including setback areas, during construction, operation, and decommissioning. Applicants must provide annual proof of weed control for the first four years of operation with the goal of weed eradication significantly completed by year three of operation.
- Noise: Noise limits for renewable energy facilities cannot exceed the greater of 40 decibels (dBA) or the ambient daytime and nighttime average sound level by more than 5 dBA.
- Surface water protection: Solar energy facility applicants must develop and implement a stormwater pollution prevention plan, a spill prevention control and countermeasure plan, and a horizontal directional drilling contingency plan, to minimize and prevent potential discharges to surface waters.
- Fencing: Solar energy facility perimeter fencing must be small-wildlife permeable and aesthetically fitting for a rural location.
- Setbacks: Solar energy facility panel modules must be setback at least 50 feet from non‑participating parcel boundaries, at least 300 feet from non-participating residences, and at least 150 feet from the edge of the pavement of any road within or adjacent to the project area.
- Regulatory: Compliance monitoring and reporting requirements to ensure applicants meet the commitments and conditions contained in each OPSB certificate.
What happens next?
Parties have 30 days from the July 20 adoption date to file a request for a rehearing on OPSB’s decision to adopt the rules. A rehearing request to OPSB must be based upon an argument that the rules are unreasonable or unlawful. Absent a rehearing request, the OPSB will forward the rules package to JCARR, a committee consisting of five representatives and five senators from the Ohio legislature. JCARR must hold a public hearing to hear comments on the rules between 31 and 45 days after receiving them, then must review the rules to ensure they don’t exceed OPSB’s authority, conflict with existing rules or legislative intent, and include analyses of fiscal and business impacts. The committee will next either approve the rules or recommend invalidation of some or all of the rules by the Ohio legislature, and both the House and Senate would have to pass resolutions to follow JCARR's invalidation recommendations. If JCARR approves the rules, they’ll go into effect right away.
Follow the JCARR rules review process at https://www.jcarr.state.oh.us/.
Follow this link to read the OPSB Order adopting the rules, which contains the revised rules beginning on page 14.
The entire history of the rules revision is available in Case Record 21-0902-GE-BRO.
Despite the arrival of summer and continuing disagreements over the state budget, Ohio legislators have been working on several pieces of legislation relevant to Ohio agriculture. All of the proposals are at the committee level but may see action before the Senate and House after the budget bill process ends. Here’s a summary of the ag related proposals currently under consideration.
Senate Bill 111 – Urban Agriculture
Senator Paula Hicks-Hudson (D-Toledo) targets barriers for farmers in urban settings in SB 111, which has had three hearings before the Senate Agriculture and Natural Resources Committee. OSU Extension, the Ohio Municipal League, and several farmers have testified in support of the proposal, which contains three components:
- Establishes an Urban Farmer Youth Initiative Pilot Program to provide youth between the ages of six and eighteen living in urban areas with programming and support for farming and agriculture. The bill would appropriate $250,000 over 2024 and 2025 for the pilot, to be administered by OSU Extension and Central State Extension.
- Exempts temporary greenhouses, such as hoop houses, from the Ohio Building Code, consistent with Ohio law’s treatment of other agricultural buildings and structures.
- Codifies the Department of Taxation’s current treatment of separate smaller parcels of agricultural land under the same farming operation, which allows the acreages to be combined to meet the 10 acre eligibility requirement for Current Agricultural Use Valuation.
House Bill 64 – Eminent Domain
A proposal to make Ohio’s eminent domain laws more favorable to landowners remains on hold in the House Civil Justice Committee. HB 64 is receiving more opposition than support, with dozens of parties testifying against it in its fourth hearing on May 23. Read more about the proposal in our previous blog post.
House Bill 162 - Agriculture Appreciation Act
Rep. Roy Klopfenstein (R-Haviland) and Rep. Darrell Kick (R-Loudonville) introduced HB 162 on May 1 and the bill received quick and unanimous approval from the House Agriculture Committee on May 16. The proposal would make several designations under Ohio law already recognized by federal law:
- March 21 as "Agriculture Day."
- October 12 as "Farmer's Day."
- The week beginning on the Saturday before the last Saturday of February as "FFA Week."
- The week ending with the second Saturday of March as "4-H Week."
House Bill 166 – Temporary Agricultural Workers
A bill addressing municipal income taxes for H2-A agricultural workers has met opposition in the House Ways and Means Committee. HB 166, sponsored by Rep. Dick Stein (R-Norwalk) would subject foreign agricultural workers’ income to municipal income taxes. The current municipal tax base in Ohio is based on federal tax laws that exclude foreign agricultural worker pay from Social Security and Medicare taxes since the workers cannot use those programs, and HB 166 would remove that exclusion and add H2-A income to the municipal tax base. The bill would also require employers to withhold the taxes for the municipality of the workers’ residences. While municipal interests support the bill, Ohio Farm Bureau and other agricultural interests testified against it in its third hearing on June 13. Opponents argue that H2-A workers are not residents because they are “temporary,” that the proposal would have many potential adverse effects on how Ohio handles the H2-A program, and would hamper the ability of agricultural employers to use the H2-A program to hire employees.
House Bill 193 – Biosolid and biodigestion facilities
Biosolid lagoons and biodigestion facilities would have new legal requirements and be subject to local regulation under a proposal sponsored by Rep. Kevin Miller (R-Newark) and Rep. Brian Lampton (R-Beavercreek). HB 193 would grant county and township zoning authority over the lagoons and facilities, require a public meeting and county approval prior to seeking a facility permit from the Ohio EPA, require the Ohio EPA to develop rules requiring covers on new biosolid lagoons, and modify feedstock requirements for biodigestion facilities to qualify for Current Agricultural Use Valuation property tax assessment. HB 193 had its first hearing before the House Agriculture Committee on June 13.
House Bill 197 – Community Solar Development
A “community solar” proposal that did not make it through the last legislative session is back in a revised form. HB 197 proposes to define and encourage the development of “community solar facilities,” smaller scale solar facilities that are directly connected to an electric distribution utility’s distribution system and that create electricity only for at least three “subscribers.” The bill would establish incentives for placing such facilities on distressed sites and Appalachian region sites through a “Community Solar Pilot Program” and a “Solar Development Program.” Rep. James Hoops (R-Napoleon) and Sharon Ray (R-Wadsworth) introduced the bill on June 6, and it received its first hearing before the House Public Utilities Committee on June 21. “The goal of this legislation is to create a small-scale solar program that seeks to be a part of the solution to Ohio’s energy generation and aging infrastructure need,” stated sponsor Hoops.
House Bill 212 – Foreign ownership of property
Ohio joins a movement of states attempting to limit foreign ownership of property with the introduction of HB 212, the Ohio Property Protection Act. Sponsored by Representatives Angela King (R-Celina) and Roy Klopfenstein (R-Haviland), the proposal would prohibit foreign adversaries and certain businesses from owning real property in Ohio. The bill was introduced in the House on June 13 and has not yet been referred to a committee for review.
Tags: legislation, urban agriculture, eminent domain, employment, H2-A, tax law, Income Tax, cauv, biosolids, bioenergy, Zoning, solar, foreign ownership
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Like the farm fields across Ohio lately, a little dust has been flying down at the Statehouse in Columbus. Our legislators are back to work and considering several bills that could affect agriculture. A few bills aren’t seeing much action, though. Here’s a summary of recent activity and inactivity at the Statehouse.
Newly introduced bills
H.B. 440 and S.B.241 – Agricultural Linked Deposit Program. This pair of bills introduced on September 30, 2021 by Representatives Swearingen (R-Huron) and White (R-Kettering) and Senators Cirino (R-Kirtland) and Rulli (R-Salem) is one of three bills in the “Ohio Gains Initiative” offered in partnership with Ohio Treasurer Robert Sprague. The Initiative proposes three new investment reforms affecting agriculture, health systems, and higher education. The agricultural proposal in H.B. 440 and S.B. 241 would expand the current Ag-LINK loan program that provides interest rate reductions of up to 3% on operating loans. The bill would make the loans available to cooperatives in addition to farm operators and agribusinesses and would also remove the $150,000 cap on Ag-LINK loans. It’s been referred to the House Financial Institutions Committee and the Senate Financial Institutions & Technology Committee.
Bills on the move
H.B. 175 – Deregulate certain ephemeral water features. The bill addresses “ephemeral features”—surface water that flows or pools only in direct response to precipitation but that is not a wetland. Under the proposal, ephemeral features would be exempt from water pollution control programs in Ohio, including the Clean Water Act Section 401 Water Quality Certification Program, as proposed in the federal 2020 Navigable Waters Protection Rule now on hold. The bill would also eliminate the certification review fee for ephemeral streams. H.B. 175 passed the House on September 30, 2021, amidst strong opposition. It awaits review before the Senate Agriculture and Natural Resources Committee.
H.B. 397 – Agricultural lease law. A proposal to address termination dates and notice provisions for crop leases received its second hearing before the House Agriculture and Conservation Committee on October 12. H.B. 397 would require a landowner who wants to terminate a crop lease that doesn’t address termination to do so by providing a written notice of termination to the tenant by September 1 of the year the termination would be effective. Discussion at the committee hearing could result in a broadening of the bill to include pasture leases.
S.B. 47 – Overtime pay. The Senate passed this bill on September 22, and it has since been referred to the House Commerce and Labor Committee. The bill exempts certain activities from the requirement for an employer to pay overtime wages. Under the proposal, traveling to and from a worksite would be exempt from overtime. Performing preliminary or postliminary tasks and activities outside of work hours that require insubstantial periods of time, such as checking email or voice mail, would also be exempt. The bill now moves to the House Commerce and Labor Committee.
Bills not moving
Several bills we’ve been watching have not generated continued interest at the Statehouse, including:
- H.B. 95, the Beginning Farmers bill that would provide income tax credits for beginning farmers who attend approved financial management programs and for owners who sell land and agricultural assets to certified beginning farmers. It passed the House in late June but was removed from the agenda when first scheduled for a hearing before the Senate Ways and Means Committee on September 28, 2021.
- H.B. 30, the bill adding marking and lighting requirements to animal-drawn vehicles, also passed the House in late June but has not seen action since its second hearing before the Senate Transportation Committee on September 22, 2021.
- H.B. 385, which would prohibit municipalities in the Western Basin of Lake Erie from discharging waste into those waters, fine those who do, and revoke NPDES permits for municipalities owning treatment works or sewerage systems within the Western Basin. The bill received one hearing before the House Agriculture and Conservation Committee on September 28.
- H.B. 349, which would place a moratorium on granting permits for a new construction or expansion of a regulated animal feeding facility in the Maumee watershed if the Ohio Department of Agriculture has determined that the phosphorus load in the Maumee River exceeded a specified number. The House Agriculture and Conservation Committee has not scheduled the bill for a hearing since it was referred to the committee on June 16, 2021.
Bills now effective
S.B. 52, the bill addressing large-scale wind and solar facility development in Ohio, became effective on October 11, 2021. The bill allows county commissioners to prohibit wind and solar developments and to establish restricted areas in the county that are off limit to the developments, gives county citizens an opportunity to place a restricted area designation on the ballot, increases local awareness and engagement in review of a proposed facility, and requires decommissioning plans and bonds for approved developments. Learn more about S.B. 52 with our law bulletins and videos on the new laws, available in our energy law library.
Hear our next review of state and federal legislation in Farm Office Live on November 17 and 19, 2021. More information is available here.
Tags: legislation, ag-link, ephemeral water, water pollution, leases, overtime, beginning farmers, slow moving vehicles, roadway, CAFF, animal feeding, Lake Erie, waste, solar, wind, renewable energy, sb 52
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Update: Governor DeWine signed this bill on July 12, 2021 and it becomes effective on October 9, 2021.
It’s been a long and winding road to the Governor’s desk for Senate Bill 52, the controversial bill on siting and approval of large-scale wind and solar facilities in Ohio. The bill generated opposition and concern from the outset, requiring a major overhaul early on. A substitute bill passed the Senate on June 2 after six hearings and hundreds of witnesses testifying for and against the bill. It took the House five hearings to pass a further revised version of the bill earlier this week, and the Senate agreed to those revisions the same day. Now the bill awaits Governor DeWine’s action. If the Governor signs the bill, it would become effective in 90 days.
S.B. 52 generates conflicting opinions on property rights and renewable energy. It would grant counties and townships a voice in the siting and approval of large-scale wind and solar projects, allowing a community to go so far as to reject facility applications and prohibit facilities in identified restricted areas of the county. Supporters of the bill say that new local authority would allow local residents to protect their individual property rights as well as the fate of the community. On the other side, opponents claim that the bill interferes with the property rights of those who want to lease their land for solar and wind development and unfairly subjects renewable energy to stricter controls than other energy projects.
The bill itself is lengthy and a bit tedious but we’ve organized it into the following summary. An important first step is to understand the types of projects subject to the law, so we begin with the definitions section of the bill.
Definitions – Ohio Revised Code 303.57
The bill defines several key terms used to identify the types of wind and solar projects and applications that would be subject to the new law:
- “Economically significant wind farm” means wind turbines and associated facilities with a single interconnection to the electrical grid and designed for, or capable of, operation at an aggregate capacity of five or more megawatts but less than fifty megawatts, excluding any such wind farm in operation on June 24, 2008 and one or more wind turbines and associated facilities that are primarily dedicated to providing electricity to a single customer at a single location and that are designed for, or capable of, operation at an aggregate capacity of less than twenty megawatts, as measured at the customer's point of interconnection to the electrical grid.
- “Large wind farm” means an electric generating plant that consists of wind turbines and associated facilities with a single interconnection to the electrical grid that is a “major utility facility.”
- “Large solar facility” means an electric generating plant that consists of solar panels and associated facilities with a single interconnection to the electrical grid that is a major utility facility.
- “Utility facility” means all of the above.
- “Major utility facility” means (a) electric generating plant and associated facilities designed for, or capable of, operation at a capacity of fifty megawatts or more, (and also includes certain electric transmission lines and gas pipelines).
- “Material amendment” means an amendment to an existing utility facility certificate that changes its generation type, increases its nameplate capacity or changes the boundaries outside existing boundaries or that increase the number or height of wind turbines.
Designation of utility facility restricted areas in a county – ORC 303.58 and ORC 303.59
The bill would allow the county commissioners to designate “restricted areas” within the unincorporated parts of the county where economically significant wind farms, large wind farms, and large solar facilities may not be constructed.
- The commissioners may take this action at a regular or special meeting.
- The commissioners must give public notice of the meeting and proposed restricted areas at least 30 days prior, including to all townships, school districts and municipalities within the proposed restricted areas.
- The restricted area designations shall not apply to utility facilities that were not prohibited by the commissioners in the county review under ORC 303.61, described below.
- The restricted area designations become effective 30 days after the commissioners adopt the resolution unless a petition for referendum, described below, is presented to the commissioners within 30 days of adoption.
- Once effective, a restricted area designation prohibits anyone from filing an application for a certificate or a material amendment to an existing certificate to construct, operate or maintain a utility facility in the restricted area.
Referendum on designation of utility facility restricted areas – ORC 303.59
If a county approves a restricted area, the bill sets up a referendum procedure to allow voters to have a say in the designation. Residents may file a petition for referendum and request the county commissioners to submit the designation of a utility facility restricted area to a vote of the electors in the county.
- At least 8% of the total vote cast for governor in the most recent election must sign the petition.
- The petition must be presented to the commissioners within 30 days of the resolution adopted to designate the restricted areas.
- Within two weeks of receiving the petition and no less than 90 days prior to the election, the county commissioners must certify the petition to the county board of elections, who must verify the validity of the petition.
- The utility facility restricted area designation must be submitted to electors for approval or rejection at a special election on the day of the next primary or general election that occurs at least 120 days after the petition is filed.
- If a majority of the vote is in favor of the restricted area designation, the designation shall be effective immediately.
County review of proposed wind and solar utility facilities -- ORC 303.61
Local residents and officials have expressed concerns that they’re the last to know of a proposed large-scale wind or solar development proposed for their community. Under the bill, utility facilities must hold a public meeting in each county where the facility will be located within 90 to 300 days prior to applying for or making a material amendment to an application for a certificate from the Ohio Power Siting Board.
- The facility applicant must give a 14 day advance written notice of the public meeting to the county commissioners and to trustees of townships in which facility would be located.
- At the meeting, the facility applicant must present in written form the type of utility facility, its maximum nameplate capacity, and a map of its geographic boundaries.
- Up to 90 days after the public meeting, the county commissioners may adopt a resolution that prohibits the construction of the facility or limits its boundaries to a smaller part of the proposed location. If the county commissioners do not prohibit or limit the facility, the applicant may proceed with the application.
Ohio Power Siting Board Composition – ORC 4906.021 to ORC 4906.025
The bill also responds to concerns that community members do not have a voice in the facility approval process overseen by Ohio’s Power Siting Board (OPSB). For every utility facility application or material amendment to an application, the bill would require the OPSB to include two voting “ad hoc” members on the board to represent residents in the area where the facility is proposed.
- The ad hoc members shall be the chair of the township trustees and the president of the county commissioners in the township and county of the proposed location, or their elected official or resident designees, or a trustee and commissioner chosen by a vote of the trustees and commissioners if the application affects multiple townships and counties.
- An ad hoc member or the member’s immediate family members cannot have an interest in a lease or easement or any other beneficial interest with the applicant utility facility and cannot be an intervenor or have an immediate family member who is an intervenor in the OPSB proceeding.
- The ad hoc members must be designated no more than 30 days after the county or township is notified by the OPSB that the application has been submitted and meets statutory requirements.
- An ad hoc member may not vote on a resolution by its county commissioners or township trustees to intervene in the application proceeding.
- An ad hoc member is exempt from restrictions on ex parte communications with parties in the case but must disclose the date and participants of ex parte conversations and shall not disclose or use confidential information acquired in the course of official duties.
OPSB Authority – ORC 4901.101; ORC 4906.30
There are parameters in the bill for projects that the OPSB may not approve. The OPSB may not grant a certificate for the construction, operation, and maintenance of or material amendment to an existing certificate for a utility facility in these situations:
- If the utility facility is prohibited by a restricted area designation.
- If the county commissioners have prohibited the utility facility by resolution.
- Where the utility facility would be in multiple counties, the OPSB must modify a certificate to exclude the area of a county whose commissioners prohibited the facility.
- For any areas outside the boundaries of the utility facility that were changed by action of the county commissioners.
- If the facility has a nameplate capacity exceeding the capacity provided to the county commissioners, has a geographic area not completely within the boundaries provided to the county commissioners, or is a different type of generation than that provided to the county commissioners.
Decommissioning Plans for Utility Facilities – ORC 4906.21 to ORC 4906.212
The question of what happens to a facility when its production life ends has been another issue of voiced concern. The bill establishes decommissioning procedures for facilities. At least 60 days prior to commencement of construction of a utility facility, an applicant must submit a decommissioning plan for review and approval by the OPSB.
- A state registered professional engineer must prepare the plan, and the OPSB may reject the selected engineer.
- The plan must include:
- A list of parties responsible for decommissioning of the utility facility.
- A schedule of decommissioning activities, which cannot extend more than 12 months beyond the date the utility facility ceases operation.
- Estimates of the full cost of decommissioning, including proper disposal of facility components and restoration of the land on which the facility is located to its pre-construction state, but not including salvage value of facility materials.
- The estimate of the full cost of decommissioning a utility facility must be recalculated every five years by an engineer retained by the applicant.
Performance Bonds – ORC 4906.22 to ORC 4906.222
How to and who pays for facility decommissioning is also addressed in the bill. Before beginning construction of a utility facility, the applicant must post a performance bond to ensure that funds are available for the decommissioning of the facility.
- The utility facility must name the OPSB as the bond oblige.
- The bond shall equal the estimate of decommissioning costs included in the facility’s decommissioning plan.
- The bond shall be updated every five years according to the most recent costs of decommissioning the facility and shall increase if estimated costs increase but shall not decrease if estimated costs decrease.
OPSB Provision of Approved Application -- ORC 4906.31
Under the bill, local governments would formally know if a project receives OPSB approval. The OPSB must provide a complete copy of an approved application for or material amendment to a certificate to each board of trustees and county commissioners in the townships and counties of the facility location.
- The copy must be provided within 3 days of the OPSB’s acceptance of the application and filing fee payment by the applicant.
- The copy may be in electronic or paper form.
Effect on Utility Facility Applications in Process – Sections 3, 4 and 5 of the Act
Many wind and solar facility projects are currently in process, so the bill addresses what happens to those projects should the law go into effect.
- The new law would apply to all applications for a certificate or a material amendment to an existing certificate for an economically significant wind farm or large wind farm that is not accepted by the OPSB within 30 days after the effective date of the legislation.
- An application for an economically significant wind farm or large wind farm that is not approved within 30 days after the effective date would be subject to review by the county commissioners, who would have 90 days after the effective date to review the application and act according to the provisions of the new law.
- If an application for a certificate or material amendment to a certificate for a utility facility has not been accepted by the OPSB as of the new law’s effective date, the OPSB must include “ad hoc” members in further OPSB proceedings on the application.
- The new law would not apply to an application for a certificate or material amendment to a certificate for a large solar facility that, as of the effective date of the new law, is in the new services queue of the PJM interconnection and regional transmission organization at the time the application is accepted by OPSB and the applicant has received a completed system impact study from PJM and paid its filing fee.
- If the facility has multiple positions in the PJM new services queue, all queue position in effect on the law’s effective date are exempt from the new law.
- If the facility submits a new queue position for an increase in its capacity interconnection rights, the change shall not subject the facility to the new law as long as the facility’s nameplate capacity does not increase.
We’ll keep an eye on the Governor to learn where S.B. 52’s road will end. Read the full text of S.B. 52 and further information about it on the Ohio General Assembly’s website.
Energy is a hot topic at the statehouse these days. The Ohio General Assembly is reviewing several proposals dealing with energy sources, including solar and wind facilities, oil, gas, and gas pipelines. The proposals raise a critical question about where control over energy production activities should lie: with the state or with local communities? The proposals offer contrasting views on the answer to that question.
Solar and wind projects. We reported in March that companion bills H.B. 118 and S.B. 52 were on hold due to conflicts with the proposals, which would have allowed citizens to use the referendum process to reject proposed large scale wind and solar energy developments in their communities. On May 12, the bill sponsors offered a substitute bill to the House Public Utilities Committee. The new approach in the substitute bill would allow a township to adopt a resolution designating all or parts of the township as “energy development districts.” Doing so would allow wind and solar facilities to be constructed within the designated district(s) and would prevent the Ohio Power Siting Board from approving any projects that are not within a designated district. The residents in a township, however, would have the right to petition an energy development district designation and submit it to a vote by township residents. Sponsor Sen. Rob McColley (R-Napoleon) explained that the new approach would allow a township to let energy developers know “up front” that the community is “open for business.” The committee will hear responses to the substitute bill in additional hearings, not yet scheduled.
Fossil fuel and gas pipelines. A proposal regarding energy generation from fossil fuels and gas pipelines takes an opposite approach on local control. H.B. 192, sponsored by Rep. Al Cutrona (R-Canfield) would prohibit counties, townships, and municipal corporations from prohibiting or limited the use of fossil fuels for electricity generation and the construction or use of a pipeline to transport oil or gas. About a dozen opponents testified against the bill at its third hearing before the House Energy and Natural Resources last week, with most arguing that the proposal removes rights of local communities to control their energy sources and violates the home rule authority for municipalities provided in Ohio’s Constitution. The bill is not yet scheduled for an additional committee hearing.
Natural gas. A bill that guarantees access to natural gas passed the House of Representatives on May 6, largely along party lines. H.B. 201, sponsored by Rep. Jason Stephens (R-Kitts Hill), guarantees that every person has a right to obtain any available distribution service or competitive retail natural gas service from gas suppliers, and bars a political subdivision from enacting laws that would limit, prevent, or prohibit a consumer within its boundaries from using distribution services, retail natural gas service, or propane. Opponents argue that the bill violates home rule authority and is unnecessary, since no community in Ohio has ever banned the use of natural gas. The bill was referred to the Senate Energy and Public Utilities Committee on May 12.
We'll keep you posted on the progress of these bills as the Ohio General Assembly continues to deal with the question of local versus state control of energy production and distribution in Ohio.
Tags: solar, wind, solar development, Oil, Gas, pipelines
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