Chapter 939 | Soil And Water Conservation

Section 939.01 | Definitions.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

As used in this chapter:

(A) "Agricultural pollution" means failure to use management or conservation practices in farming operations to abate wind or water erosion of the soil or to abate the degradation of the waters of the state by residual farm products, manure, or soil sediment, including attached substances.

(B) "Animal feeding operation" means the production area, as defined in section 903.01 of the Revised Code, of an agricultural operation where agricultural animals are kept and raised in confined areas. "Animal feeding operation" does not include a facility that possesses a permit issued under Chapter 903. or division (J) of section 6111.03 of the Revised Code.

(C) "Best management practices" means practices or a combination of practices that are determined to be the most effective and practicable means of preventing or reducing agricultural pollution sources to a level compatible with the attainment of applicable water quality standards. "Best management practices" includes structural and nonstructural practices, conservation practices, and operation and maintenance procedures.

(D) "Composting" means the controlled decomposition of organic solid material consisting of dead animals that stabilizes the organic fraction of the material.

(E) "Conservation" means the wise use and management of natural resources.

(F) "Manure" means animal excreta.

(G) "Ohio soil and water conservation commission" means the Ohio soil and water conservation commission established in section 940.02 of the Revised Code.

(H) "Operation and management plan" means a written record, developed or approved by the director of agriculture, the director's designee, or the board of supervisors of a soil and water conservation district, for the owner or operator of agricultural land or an animal feeding operation that contains both of the following:

(1) Implementation schedules and operational procedures for a level of management and pollution abatement practices that will abate the degradation of the waters of the state by residual farm products, manure, and soil sediment, including attached pollutants;

(2) Best management practices that are to be used by the owner or operator.

(I) "Pollution abatement practice" means any erosion control, residual farm products, or manure pollution abatement facility, structure, or procedure and the operation and management associated with it as contained in an operation and management plan.

(J) "Residual farm products" means bedding, wash waters, waste feed, and silage drainage. "Residual farm products" also includes the compost products resulting from the composting of dead animals in operations subject to section 939.04 of the Revised Code when either of the following applies:

(1) The composting is conducted by the person who raises the animals and the compost product is used in agricultural operations owned or operated by that person regardless of whether the person owns the animals.

(2) The composting is conducted by the person who owns the animals, but does not raise them and the compost product is used in agricultural operations either by a person who raises the animals or by a person who raises grain that is used to feed them and that is supplied by the owner of the animals.

(K) "Soil and water conservation district" has the same meaning as in section 940.01 of the Revised Code.

(L) "Waters of the state" means all streams, lakes, ponds, wetlands, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and other bodies or accumulations of water, surface and underground, natural or artificial, regardless of the depth of the strata in which underground water is located, that are situated wholly or partly within, or border on, this state or are within its jurisdiction, except those private waters that do not combine or effect a junction with natural surface or underground waters.

Section 939.02 | Powers and duties of director of agriculture.

• Effective: April 12, 2021
• Latest Legislation: House Bill 166 (GA 133), House Bill 7 (GA 133)

The director of agriculture shall do all of the following:

(A) Provide administrative leadership to soil and water conservation districts in planning, budgeting, staffing, and administering district programs and the training of district supervisors and personnel in their duties, responsibilities, and authorities as prescribed in this chapter and Chapter 940. of the Revised Code;

(B) Administer this chapter and Chapter 940. of the Revised Code pertaining to state responsibilities and provide staff assistance to the Ohio soil and water conservation commission in exercising its statutory responsibilities;

(C) Assist in expediting state responsibilities for watershed development and other soil and water conservation works of improvement, including assisting in watershed planning and management under section 940.41 of the Revised Code;

(D) Coordinate or support the development and implementation of cooperative programs and working agreements between soil and water conservation districts and the department of agriculture, department of natural resources, environmental protection agency, or other agencies of local, state, and federal government. The cooperative programs and working agreements shall be for the support of farm, rural, suburban, and urban conservation programs.

(E) Subject to the approval of the Ohio soil and water conservation commission, adopt rules in accordance with Chapter 119. of the Revised Code that do or comply with all of the following:

(1) Establish technically feasible and economically reasonable standards to achieve a level of management and conservation practices in farming operations that will abate wind or water erosion of the soil or abate the degradation of the waters of the state by residual farm products, manure, or soil sediment, including attached substances, and establish criteria for determination of the acceptability of such management and conservation practices;

(2) Establish procedures for administration of rules for agricultural pollution abatement and for enforcement of those rules;

(3) Specify the pollution abatement practices eligible for state cost sharing and determine the conditions for eligibility, the construction standards and specifications, the useful life, the maintenance requirements, and the limits of cost sharing for those practices. Eligible practices shall be limited to practices that address agricultural operations and that require expenditures that are likely to exceed the economic returns to the owner or operator and that abate soil erosion or degradation of the waters of the state by residual farm products, manure, or soil sediment, including attached pollutants.

(4) Establish procedures for administering grants to owners or operators of agricultural land or animal feeding operations for the implementation of operation and management plans;

(5) Do both of the following with regard to composting conducted in conjunction with agricultural operations:

(a) Establish methods, techniques, or practices for composting dead animals, or particular types of dead animals, that are to be used at such operations, as the director considers to be necessary or appropriate;

(b) Establish requirements and procedures governing the review and approval or disapproval of composting plans by the supervisors of soil and water conservation districts under division (S) of section 940.06 of the Revised Code.

(6) Establish best management practices for inclusion in operation and management plans;

(7) Establish the amount of civil penalties assessed by the director under division (A) of section 939.07 of the Revised Code for violation of rules adopted under division (E) of this section;

(8) Not conflict with air or water quality standards adopted pursuant to section 3704.03 or 6111.041 of the Revised Code. Compliance with rules adopted under this section does not affect liability for noncompliance with air or water quality standards adopted pursuant to section 3704.03 or 6111.041 of the Revised Code. The application of a level of management and conservation practices recommended under this section to control windblown soil from farming operations creates a presumption of compliance with section 3704.03 of the Revised Code as that section applies to windblown soil.

(F) Cost share with landowners on practices established pursuant to division (E)(3) of this section as moneys are appropriated and available for that purpose. Any practice for which cost share is provided shall be maintained for its useful life. Failure to maintain a cost share practice for its useful life shall subject the landowner to full repayment to the department.

(G) Employ field assistants and other employees that are necessary for the performance of the work prescribed by Chapter 940. of the Revised Code, for performance of work of the department under this chapter, and as agreed to under working agreements or contractual arrangements with soil and water conservation districts, prescribe their duties, and fix their compensation in accordance with schedules that are provided by law for the compensation of state employees. All such employees of the department, unless specifically exempted by law, shall be employed subject to the classified civil service laws in force at the time of employment.

(H) In connection with new or relocated projects involving highways, underground cables, pipelines, railroads, and other improvements affecting soil and water resources, including surface and subsurface drainage:

(1) Provide engineering services that are mutually agreeable to the Ohio soil and water conservation commission and the director to aid in the design and installation of soil and water conservation practices as a necessary component of such projects;

(2) Maintain close liaison between the owners of lands on which the projects are executed, soil and water conservation districts, and authorities responsible for such projects;

(3) Review plans for such projects to ensure their compliance with standards developed under division (E) of this section in cooperation with the department of transportation or with any other interested agency that is engaged in soil or water conservation projects in the state in order to minimize adverse impacts on soil and water resources adjacent to or otherwise affected by these projects;

(4) Recommend measures to retard erosion and protect soil and water resources through the installation of water impoundment or other soil and water conservation practices;

(5) Cooperate with other agencies and subdivisions of the state to protect the agricultural status of rural lands adjacent to such projects and control adverse impacts on soil and water resources.

(I) Collect, analyze, inventory, and interpret all available information pertaining to the origin, distribution, extent, use, and conservation of the soil resources of the state;

(J) Prepare and maintain up-to-date reports, maps, and other materials pertaining to the soil resources of the state and their use and make that information available to governmental agencies, public officials, conservation entities, and the public;

(K) Provide soil and water conservation districts with technical assistance including on-site soil investigations and soil interpretation reports on the suitability or limitations of soil to support a particular use or to plan soil conservation measures. The assistance shall be on terms that are mutually agreeable to the districts and the department of agriculture.

(L) Assist local government officials in utilizing land use planning and zoning, current agricultural use value assessment, development reviews, and land management activities;

(M) When necessary for the purposes of this chapter or Chapter 940. of the Revised Code, develop or approve operation and management plans. The director may designate an employee of the department to develop or approve operation and management plans in lieu of the director.

This section does not restrict the manure of domestic or farm animals defecated on land outside an animal feeding operation or runoff from that land into the waters of the state.

The Legislative Service Commission presents the text of this section as a composite of the section as amended by multiple acts of the General Assembly. This presentation recognizes the principle stated in R.C. 1.52(B) that amendments are to be harmonized if reasonably capable of simultaneous operation.

Last updated April 19, 2022 at 4:02 PM

Section 939.03 | Operation and management plan; nuisances; complaint.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

(A) A person who owns or operates agricultural land or an animal feeding operation may develop and operate under an operation and management plan approved by the director of agriculture or the director's designee under section 939.02 of the Revised Code or by the supervisors of the applicable soil and water conservation district under section 940.06 of the Revised Code.

(B) A person who wishes to make a complaint regarding nuisances involving agricultural pollution may do so orally or by submitting a written, signed, and dated complaint to the director or to the director's designee. After receiving an oral complaint, the director or the director's designee may cause an investigation to be conducted to determine whether agricultural pollution has occurred or is imminent. After receiving a written, signed, and dated complaint, the director or the director's designee shall cause such an investigation to be conducted.

(C) In a private civil action for nuisances involving agricultural pollution, it is an affirmative defense if the person owning, operating, or otherwise responsible for agricultural land or an animal feeding operation is operating under and in substantial compliance with an approved operation and management plan developed under division (A) of this section, with an operation and management plan developed by the director or the director's designee under section 939.02 of the Revised Code or by the supervisors of the applicable soil and water conservation district under section 940.06 of the Revised Code, or with an operation and management plan required under division (A)(2) of section 939.02 of the Revised Code. Nothing in this section is in derogation of the authority granted to the director in division (E) of section 939.02 and in section 939.07 of the Revised Code.

Section 939.04 | Composting of dead animals.

• Effective: October 17, 2019
• Latest Legislation: House Bill 166 - 133rd General Assembly

(A) A person who owns or operates an agricultural operation, or owns the animals raised by the owner or operator of an agricultural operation, and who wishes to conduct composting of dead animals resulting from the agricultural operation shall do both of the following:

(1) Participate in an educational course concerning composting conducted by OSU extension and obtain a certificate of completion for the course;

(2) Use the appropriate method, technique, or practice of composting established in rules adopted under division (E)(5) of section 939.02 of the Revised Code.

(B) A person who fails to comply with division (A) of this section shall prepare and operate under a composting plan required by the director of agriculture under division (A)(2) of section 939.02 of the Revised Code. If the person's proposed composting plan is disapproved by the supervisors of the appropriate soil and water conservation district under division (S)(3) of section 940.06 of the Revised Code, the person may appeal the plan disapproval to the director, who shall afford the person a hearing. Following the hearing, the director shall uphold the plan disapproval or reverse it. If the director reverses the disapproval, the plan shall be deemed approved.

Section 939.05 | Cooperative agreements with supervisors of soil and water conservation district.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

The director of agriculture, subject to approval of the terms of the agreement by the Ohio soil and water conservation commission, shall enter into cooperative agreements with the supervisors of a soil and water conservation district desiring to enter into those agreements pursuant to section 940.06 of the Revised Code. The agreements shall be entered into to obtain compliance with rules of the director pertaining to agricultural pollution abatement.

The director or the director's designee may enter at reasonable times on private property, with the consent of the property owner, or on public property to inspect and investigate conditions to determine whether or not there is compliance with the rules adopted under division (E)(1) of section 939.02 of the Revised Code. Upon reason to believe there is a violation, the director or the director's designee may apply for and a judge of the court of common pleas for the county where the land is located may issue an appropriate search warrant as necessary to achieve the purposes of this chapter.

Section 939.06 | Director may enter into contracts or agreements.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

The director of agriculture may do any of the following:

(A) Enter into contracts or agreements with any agency of the United States government, or any other public or private agency, or organization, for the performance of the prescribed duties of the department of agriculture under this chapter and Chapter 940. of the Revised Code or for accomplishing cooperative projects within the scope of those duties;

(B) Enter into agreements with local government agencies for the purpose of soil surveys, land use inventories, and other soil-related duties;

(C) Accept donations, grants, and contributions in money, service, or equipment to enhance or expedite the prescribed work of the department.

Section 939.07 | Assessment of corrective actions and penalties.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

(A)(1) The director of agriculture may propose to require corrective actions and assess a civil penalty against the owner or operator of agricultural land or an animal feeding operation if the director or the director's designee determines that the owner or operator is doing one of the following:

(a) Not complying with a standard established in rules adopted under division (E)(1) of section 939.02 of the Revised Code;

(b) Not operating in accordance with an approved operation and management plan that is developed under division (A) of section 939.03 of the Revised Code, with an operation and management plan developed by the director or the director's designee under section 939.02 of the Revised Code or by the supervisors of the applicable soil and water conservation district under section 940.06 of the Revised Code, or with an operation and management plan required by the director under division (A)(2) of this section;

(c) Not complying with a standard established in rules adopted under division (E)(5)(a) of section 939.02 of the Revised Code;

(d) Not operating in accordance with a composting plan that is approved in accordance with rules adopted under division (E)(5)(b) of section 939.02 of the Revised Code or required by the director under division (A)(2) of this section.

(2) The director may include in the corrective actions a requirement that an owner or operator do one of the following:

(a) Operate under an operation and management plan approved by the director or the director's designee under section 939.02 of the Revised Code;

(b) If the owner or operator has failed to operate in accordance with an existing operation and management plan, operate in accordance with that plan;

(c) Prepare a composting plan in accordance with rules adopted under division (E)(5)(b) of section 939.02 of the Revised Code and operate in accordance with that plan;

(d) If the owner or operator has failed to operate in accordance with an existing composting plan, operate in accordance with that plan.

(3) The director may impose a civil penalty only if all of the following occur:

(a) The owner or operator is notified in writing of the deficiencies resulting in noncompliance, the actions that the owner or operator must take to correct the deficiencies, and the time period within which the owner or operator must correct the deficiencies and attain compliance.

(b) After the time period specified in the notice has elapsed, the director or the director's designee has inspected the agricultural land or animal feeding operation, determined that the owner or operator is still not in compliance, and issued a notice of an adjudication hearing.

(c) The director affords the owner or operator an opportunity for an adjudication hearing under Chapter 119. of the Revised Code to challenge the determination of the director or the director's designee that the owner or operator is not in compliance or the imposition of the civil penalty, or both. However, the owner or operator may waive the right to an adjudication hearing.

(4) If the opportunity for an adjudication hearing is waived or if, after an adjudication hearing, the director determines that noncompliance has occurred or is occurring, the director may issue an order requiring compliance and assess the civil penalty. The order and the assessment of the civil penalty may be appealed in accordance with section 119.12 of the Revised Code.

(5) A person who has violated rules adopted under division (E) of section 939.02 of the Revised Code shall pay a civil penalty in an amount established in rules adopted under that section.

(B) The attorney general, upon the written request of the director, shall bring an action for an injunction in any court of competent jurisdiction against a person violating or threatening to violate rules adopted under division (E) of section 939.02 of the Revised Code or an order issued under division (A)(4) of this section.

(C)(1) In lieu of imposing a civil penalty under division (A) of this section, the director may request the attorney general, in writing, to bring an action for a civil penalty in a court of competent jurisdiction against a person that has violated or is violating a rule adopted under division (E) of section 939.02 of the Revised Code.

(2) The civil penalty for which an action may be brought under division (C)(1) of this section shall not exceed ten thousand dollars per violation. Each day that a violation continues constitutes a separate violation.

(D) In addition to any other penalties imposed under this section, the director may impose an administrative penalty against the owner or operator of agricultural land or an animal feeding operation if the director or the director's designee determines that the owner or operator is not in compliance with best management practices that are established in rules adopted under division (E) of section 939.02 of the Revised Code. The administrative penalty shall not exceed five thousand dollars.

The director shall afford the owner or operator an opportunity for an adjudication hearing under Chapter 119. of the Revised Code to challenge the determination of the director or the director's designee under this division, the director's imposition of an administrative penalty under this division, or both. The determination and the imposition of the administrative penalty may be appealed in accordance with section 119.12 of the Revised Code.

(E) Notwithstanding any other provision in this section, if the director determines that an emergency exists requiring immediate action to protect public health or safety or the environment, the director may issue an order, without notice or adjudication hearing, stating the existence of the emergency and requiring that action be taken that is necessary to address the emergency. The order shall take effect immediately. A person to whom the order is issued shall comply immediately, but on application to the director shall be afforded an adjudication hearing in accordance with Chapter 119. of the Revised Code as soon as possible, but not later than thirty days after the director's receipt of the application. Following the hearing, the director shall continue the order in effect, revoke it, or modify it. The order may be appealed in accordance with section 119.12 of the Revised Code. An emergency order shall not remain in effect for more than one hundred twenty days after its issuance.

If a person to whom an order is issued does not comply with the order within a reasonable period of time as determined by the director, the director or the director's designee may enter on private or public lands to investigate and take action to mitigate, minimize, remove, or abate the conditions that are the subject of the order.

(F) A person that is responsible for causing or allowing the unauthorized spill, release, or discharge of manure or residual farm products is liable to the director for the costs incurred in investigating, mitigating, minimizing, removing, or abating the spill, release, or discharge. Upon request of the director, the attorney general shall bring a civil action against the responsible person or persons to recover those costs.

(G) Money recovered under division (F) of this section and money collected from civil penalties assessed under this section shall be paid into the state treasury to the credit of the agricultural pollution abatement fund created in section 939.10 of the Revised Code.

(H) As used in this section, "noncompliance" means doing one of the actions specified in division (A)(1) of this section.

Section 939.08 | Application of manure in the western basin.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

(A) Except as provided in division (B) of this section, no person in the western basin shall surface apply manure under any of the following circumstances:

(1) On snow-covered or frozen soil;

(2) When the top two inches of soil are saturated from precipitation;

(3) When the local weather forecast for the application area contains greater than a fifty per cent chance of precipitation exceeding one-half inch in a twenty-four-hour period.

(B) Division (A) of this section does not apply if a person in the western basin applies manure under any of the following circumstances:

(1) The manure is injected into the ground.

(2) The manure is incorporated within twenty-four hours of surface application.

(3) The manure is applied onto a growing crop.

(4) In the event of an emergency, the director of agriculture or the director's designee provides written consent and the manure application is made in accordance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state.

(C)(1) Upon receiving a complaint by any person or upon receiving information that would indicate a violation of this section, the director or the director's designee may investigate or make inquiries into any alleged failure to comply with this section.

(2) After receiving a complaint by any person or upon receiving information that would indicate a violation of this section, the director or the director's designee may enter at reasonable times on any private or public property to inspect and investigate conditions relating to any such alleged failure to comply with this section.

(3) If an individual denies access to the individual's property, the director may apply to a court of competent jurisdiction in the county in which the premises is located for a search warrant authorizing access to the premises for the purposes of this section.

(4) The court shall issue the search warrant for the purposes requested if there is probable cause to believe that the person is not in compliance with this section. The finding of probable cause may be based on hearsay, provided that there is a reasonable basis for believing that the source of the hearsay is credible.

(D) This section does not affect any restrictions established in Chapter 903. of the Revised Code or otherwise apply to those entities or facilities that are permitted as concentrated animal feeding facilities under that chapter.

(E) As used in this section, "western basin" has the same meaning as in section 905.326 of the Revised Code.

Section 939.09 | Penalty for unlawful application of manure in the western basin.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

(A) Except as provided in division (D) of this section, the director of agriculture may assess a civil penalty against a person that violates section 939.08 of the Revised Code. The director may impose a civil penalty only if the director affords the person an opportunity for an adjudication hearing under Chapter 119. of the Revised Code to challenge the director's determination that the person violated section 939.08 of the Revised Code. The person may waive the right to an adjudication hearing.

(B) If the opportunity for an adjudication hearing is waived or if, after an adjudication hearing, the director determines that a violation has occurred or is occurring, the director may issue an order requiring compliance with section 939.08 of the Revised Code and assess the civil penalty. The order and the assessment of the civil penalty may be appealed in accordance with section 119.12 of the Revised Code.

(C) A person that has violated section 939.08 of the Revised Code shall pay a civil penalty in an amount established in rules. Each day during which manure is applied in violation of section 939.08 of the Revised Code constitutes a separate violation.

(D)(1) The owner or operator of a small agricultural operation or a medium agricultural operation may apply to the director for an exemption from the prohibition established in division (A) of section 939.08 of the Revised Code. If the director or the director's designee determines that it is appropriate, the director or the director's designee may issue such an exemption as follows:

(a) For a medium agricultural operation, for a period ending not later than one year after July 3, 2015;

(b) For a small agricultural operation, for a period ending not later than two years after July 3, 2015.

(2) The director shall establish the form of the application for an exemption in rules adopted under division (E) of this section.

(3) The director or the director's designee shall approve or deny an application for an exemption submitted under division (D)(1) of this section not later than thirty days after an application has been submitted.

(4) The director or the director's designee may deny an application for an exemption or revoke an exemption approved under division (D)(3) of this section if the director or the director's designee determines that the owner or operator is not in substantial compliance with this chapter and rules adopted under it other than violating division (A) of section 939.08 of the Revised Code.

(5) An owner or operator that has been issued an exemption under this section is not subject to civil penalties assessed for a violation of division (A) of section 939.08 of the Revised Code during the exemption period.

(6) An owner or operator that has an initial application for an exemption that is pending the director's review is not subject to civil penalties assessed for a violation of division (A) of section 939.08 of the Revised Code.

(E) The director shall adopt rules in accordance with Chapter 119. of the Revised Code that establish both of the following:

(1) The amount of the civil penalty assessed under this section. The civil penalty shall be not more than ten thousand dollars for each violation.

(2) Requirements governing the application form for an exemption submitted under division (D) of this section. The rules shall require the form to include all of the following:

(a) A statement from the applicant affirming that the applicant understands the provisions of sections 939.08 and 939.09 of the Revised Code;

(b) A statement from the applicant affirming that the applicant understands that the applicant must be in compliance with procedures established in the United States department of agriculture natural resources conservation service practice standard code 590 prepared for this state except procedures that are in conflict with this section and section 939.08 of the Revised Code;

(c) A place for the applicant to explain the reasons for the necessity for the exemption;

(d) A place on the form that provides information on programs that may assist an applicant with methods to comply with division (A) of section 939.08 of the Revised Code;

(e) A place on the form that provides the applicant an opportunity to request technical assistance or information from the director or the applicable soil and water conservation district to assist the applicant to comply with division (A) of section 939.08 of the Revised Code.

(F) Money collected from civil penalties assessed under this section shall be paid into the state treasury to the credit of the agricultural pollution abatement fund created in section 939.10 of the Revised Code.

(G) As used in this section:

(1) "Small agricultural operation" means an agricultural operation in the western basin that stables or confines fewer than any of the numbers of animals specified in divisions (Q)(1)(a) to (m) of section 903.01 of the Revised Code.

(2) "Medium agricultural operation" means an agricultural operation in the western basin that stables or confines any of the numbers of animals specified in divisions (Q)(1)(a) to (m) of section 903.01 of the Revised Code.

(3) "Western basin" has the same meaning as in section 905.326 of the Revised Code.

Section 939.10 | Agricultural pollution abatement fund.

• Effective: January 1, 2016
• Latest Legislation: House Bill 64 - 131st General Assembly

There is hereby created in the state treasury the agricultural pollution abatement fund, which shall be administered by the director of agriculture. The fund may be used to pay costs incurred by the department of agriculture under division (E) of section 939.07 of the Revised Code in investigating, mitigating, minimizing, removing, or abating any pollution of the waters of the state caused by agricultural pollution or an unauthorized release, spill, or discharge of manure into or upon the environment that requires emergency action to protect the public health.