Ohio Drainage Laws
Ohio’s Drainage Laws Get Major Update
An updating process began over seven years ago
By Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law, Ohio State University CFAES
COLUMBUS, Ohio — Ohio’s “petition ditch laws” are at last receiving a major revision. The Ohio General Assembly has passed H.B. 340, updating the laws that address the installation and maintenance of drainage works of improvement through the petition process. Some of Ohio’s oldest laws, the drainage laws play a critical role in maintaining surface water drainage on Ohio lands but were in serious need of updating.
An updating process began over seven years ago with the Ohio Drainage Law Task Force convened by the County Commissioners Association of Ohio (CCAO). CCAO charged the Task Force with the goals of clarifying ambiguous provisions in the law and embracing new technology and processes that would result in greater efficiencies, fewer misunderstandings and reduced legal costs for taxpayers. Task Force members included county commissioners, county engineers and staff, county auditors, Soil and Water Conservation District professionals, Ohio Farm Bureau staff, and Ohio State University’s Agricultural & Resource Law Program and other OSU faculty. Rep. Bob Cupp sponsored the resulting H.B. 340, which received unanimous approval from both the House of Representatives and Senate.
Here are a few highlights of the legislation:
Mirroring the timeframes, deadlines, notices, and hearings and appeals procedures for petitions filed with the county engineer and with the county soil and water conservation district.
The use of technology may substitute for a physical view of a proposed drainage improvement site.
The minimum width of sod or seeded strips will be ten feet rather than four feet; maximum width remains at fifteen feet.
The entire amount of sod or seeded strips will be removed from the taxable valuation of property, rather than the current provision removing only land in excess of four feet.
Factors to consider for petition approval are the same for SWCD board of supervisors and county engineers, and include costs versus benefits of the improvement, whether improvement is necessary, conducive to public welfare, will improve water management and development and will aid lands in the area by promoting economic, industrial, environmental or social development.
Clarification that the lead county in a multi-county petition is the county in which a majority of the initial length of the proposed improvement would exist, and assignment of responsibilities to officials in the lead county.
The bond amount for county engineer petitions increases to $1,500 plus $5 for each parcel of land in excess of 200 parcels.
Additional guidance for factors to be considered when determining estimated assessments.
Current law allows county commissioners to repair an existing drainage improvement upon complaint of an assessed owner if the cost doesn’t exceed $4,000. The new law increases that amount to $24,000 and allows payment of repair assessments in 10 semiannual installments rather than four.
We’re working with other Task Force members to prepare detailed explanations of the bill’s provisions and a guideline of the new procedures. County engineers and SWCD offices will begin following the revised law on the bill’s effective date of March 18, 2021, just in time for Spring rains and drainage needs.
Answering Your Questions About Surface Water Drainage Rights
By Peggy Kirk Hall: Associate Professor and Director, OSU Agricultural & Resource Law Program
The drainage of surface water is undoubtedly important to agricultural landowners. A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property. The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property. Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.
Here is a quick summary of the bulletin:
A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
However, a landowner has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors: the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference. Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project. Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.
For a detailed explanation of drainage rights, read the full bulletin here.