AGO 1987 No. 3 - Jan 15 1987
DISTRICTS ‑- WATER ‑- AUTHORITY TO FLUORIDATE WATER
Water districts do not have authority to fluoridate water by state statute. Assuming water district commissioners obtain authority to fluoridate by county, city or town ordinance, fluoridation for the water districts' users would be proper even if it incidentally resulted in delivery of fluoridated water outside the district.
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January 15, 1987
Honorable Joanne Brekke
State Representative, 32nd District
333 House Office Building
Olympia, Washington 98504
Cite as: AGO 1987 No. 3
Dear Representative Brekke:
By letter previously acknowledged, you have requested the opinion of this office on two questions which we have paraphrased as follows:
(1) Do the commissioners of water districts have the authority to fluoridate water?
(2) Assuming authority exists for fluoridation, may a water district owning its storage tank fluoridate the water supply when another water district, which by agreement shares the water supply, objects to the fluoridation?
We answer your first question in the negative and your second question in the manner set forth in our analysis.
Your first question inquires whether water district commissioners may fluoridate water. Title 57 RCW authorizes the formation of water districts for "the acquirement, construction, maintenance, operation, development and regulation of a water supply system and providing for additions and betterments thereto . . . ." RCW 57.04.020.
[[Orig. Op. Page 2]]
This state's statutes do not contain any provision that specifically deals with water fluoridation. The only references to water fluoridation in the Washington Administrative Code are at chapter 248-54 WAC. The purpose of chapter 248-54 WAC is to regulate the health aspects of the public water supply as administered by the Department of Social and Health Services. WAC 284-54-005; RCW 43.20.050. The rules pertaining to fluoride deal with permissible levels of fluoride in public drinking water and with methods of testing for and reporting on fluoride concentration. These rules do not authorize fluoridation of drinking water.
Article 11, section 11 of the Washington State Constitution provides: "Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws." InKaul v. Chehalis, 45 Wn.2d 616, 277 P.2d 352 (1954), Kaul challenged a city ordinance providing for fluoridation of the water supply of the City of Chehalis. The court found that dental caries (tooth decay) is a common disease and, although neither infectious nor contagious, its prevention and extermination come within the police power of the state. Kaul argued that the city had no specific delegated authority to fluoridate the city water supply. The court concluded that the city ordinance was a valid exercise of police power and violated no constitutional rights guaranteed to Kaul. Kaul, 45 Wn.2d at 625. Accord Birnel v. Fircrest, 53 Wn.2d 830, 335 P.2d 819 (1959) (per curiam).
Accordingly, we conclude that under the state constitutional provisions dealing with police powers and sanitary regulations, any county, city, town, or township may adopt an appropriate ordinance or regulation providing for fluoridation of its water supply. A water district, however, is not a county, city, town or township. Water districts are authorized by the Legislature. As statutory entities, water districts are limited in authority to those powers expressly granted by statute and if there is any doubt about a claimed grant of power, it must be denied. See Chemical Bank v. WPPSS, 99 Wn.2d 772, 792, 666 P.2d 329 (1983).
The Legislature has inherent police power and is not restricted in its delegation of that power. Snohomish Cy. Builders Assoc. v. Snohomish Health Dist., 8 Wn. App. 589, 595, 508 P.2d 617 (1973). We now, therefore, turn to the statutes governing formation and operation of water districts (Title 57 RCW) to determine if the Legislature has granted water districts any authority to adopt police and sanitary regulations.
[[Orig. Op. Page 3]]
A water district may regulate and control the use, distribution, and price of water within its district. RCW 57.08.010. Further, a water district may acquire, construct, maintain, operate, develop, and regulate a water supply system and provide for additions and betterments to the system. RCW 57.04.020.
RCW 57.04.030 sets forth the requirements for the preparation of a petition to be presented to the county legislative authority of each county in which a proposed water district is located. The statute requires the petition to include language establishing that "the district will be conducive to the public health, convenience and welfare." RCW 57.04.030. In our opinion, the foregoing language is a declaration by the Legislature that it is exercising its police power in providing for the establishment of water districts. A declaration that water districts be conducive to public health and welfare cannot be construed as a grant or delegation of police power to water districts.
In conclusion, it is our opinion that the Legislature has not granted water districts the necessary police power to fluoridate water. A water district's only authority to fluoridate comes in the implementation of a fluoridation ordinance, adopted by the legislative authority of the county, city, or town in which the district is located. We therefore answer your first question in the negative.
We turn now to your second question, repeated herefore as of reference:
Assuming authority exists for fluoridation, may a water district owning its storage tank fluoridate the water supply when another water district, which by agreement shares the water supply, objects to the fluoridation?
Inasmuch as we have concluded that water district commissioners do not have independent authority to fluoridate water, we could end our analysis here by answering your second question in the negative. This, however, would not allow us to reach the underlying issue of whether one water district may fluoridate over the objection of another water district that shares its water storage facilities. We will therefore assume for the moment that the water district commissioners in question have the requisite authority for fluoridation, with another water district sharing the facility objecting to the fluoridation.
[[Orig. Op. Page 4]]
RCW 57.08.045 authorizes contracting between water districts for operation of property, facilities, or services. We will assume that there exists a valid contract between the two water districts in question, entered into pursuant to the provisions of this statute. InWilson v. Mountlake Terrace, 69 Wn.2d 148, 417 P.2d 632 (1966), the City of Mountlake Terrace fluoridated the city's water supply, resulting in the fluoridation of the water of nonresidents who wished to have their water remain unfluoridated. The court found that the only feasible method available to the city to fluoridate its water was by introduction of fluoride at the point where the water was delivered to the city. Wilson argued that absent express statutory authority, a city cannot exercise its police powers beyond its boundaries. The court ruled that the city was not exercising its police power outside the city limits because the fluoridation was not being done for the purpose of fluoridating water it delivered to persons residing outside the city, but rather, to furnish fluoridated water to its own inhabitants. Wilson, 69 Wn.2d at 153.
Relying on the holding in Wilson, we conclude that assuming the water district commissioners have the authority to fluoridate, the introduction of fluoride into the water to serve the users of the water district, which incidentally results in delivery of fluoridated water to inhabitants outside the water district, would be proper. Accordingly, we answer your second question in the affirmative, as qualified in the foregoing analysis.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
MEREDITH WRIGHT MORTON
Assistant Attorney General