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.

Go here to read H.B. 340.

Information found on the Morning Ag Clips website. Click here for the article.

Answering Your Questions About Surface Water Drainage Rights

By Peggy Kirk Hall: Associate Professor and Director, OSU Agricultural & Resource Law Program

New law bulletin explains Ohio surface water drainage law

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.

Wayne SWCD F.A.Q. on Water Drainage Issues:

  • Is my neighbor permitted to drain water from his property onto mine?

Generally, this is allowable as long as the water continues to follow its natural established course of flow. This is explained in detail in the Ohio Drainage Laws, found in the Ohio Revised Code, Chapters 6131, 6135 and 6137.

  • My neighbor is building a home and I get more run off than I did before. What can I do?

It is essential to discuss this problem with either the builder of the home or the future homeowners as soon as the problem is noticed. In some cases, this is a temporary issue until the site is completed and has established vegetation. Drainage issue are much easier to fix during the building phase than after. Also, some cities and villages require a grading plan. This can be reviewed by the community and builder to make sure it was followed.

  • When you consider buying property, it is necessary to do your homework! Soils are one of the most important items to research before purchasing property. Soil surveys will describe all of the soil types in an area, as well as which soils are generally suitable for septic systems, building, farming and other uses. Also be aware of where your house is located (uphill or downhill). Water flows downhill, so property located in valleys and lower elevations will receive large amounts of water during a heavy rain, no matter what neighbors are doing. Researching this information can save a lot of time and money in damage due to wet soil conditions.

  • Can the SWCD serve as the enforcement agency regarding drainage complaints?

No, the District cannot enforce drainage issues on private property. We cannot enter a landowner’s property and order them to halt activity or force them to drain surface water off their land. We must be invited. If a landowner, either upstream or downstream, requests our technical assistance with solving drainage problems on their own property, we are happy to respond and provide as much information as our expertise allows. Unfortunately, this may require that the property owner invest their own time and money to correct problems that originate on a neighbor’s land.

  • New neighbors moved in next door and they are directing their roof water directly on my property. Who can help?

Again, this ends up being a private issue where the District has no authority. Talking to your new neighbor and trying to resolve the problem is the best option. If this does not work, you have the option to seek legal counsel and go to civil court to resolve the drainage issue. See the OSU Extension Law Bulletin.

  • What other suggestions besides neighbor relations and practices being installed to minimize drainage concerns does Wayne SWCD offer?

Finally, we encourage landowners who experience drainage issues to document with dated pictures, videos and receipts of repairs resulting from stormwater damage in a dated folder. This information will be important if the landowner chooses to resolve the concern in civil court.