BRAINERD — The non-fluoridated water tap in Brainerd will not come back on.

The city’s legal counsel says it would be illegal to do so.

Brainerd Public Utilities Commission members voted 3-1 Tuesday, Dec. 19, not to turn the tap on after reviewing a memo from City Attorney Joe Langel.

Langel weighed in on the issue after commissioners requested guidance at their meeting in October.

The tap at the treatment plant has offered non-fluoridated water to residents since the city lost its contentious fluoride battle in 1980 and was made to fluoridate its water system. The tap was shut off in August after the city’s water was contaminated with total coliform bacteria and will remain that way.

BPU continues to chlorinate the city’s water in accordance with state guidelines after the contamination, and Superintendent Todd Wicklund said chlorinating that tap would be a major undertaking, as the water flows directly from the well fields.

But with staunch opponents to fluoridation still using the tap, City Council members sent a letter to the commission in October asking to turn the tap back on. Commissioners took up the issue later that month, but a motion to turn the tap back on failed 1-4, with Tad Johnson the only proponent. Other commissioners wanted further guidance on whether they could do so without creating unnecessary liability or issues for the city.

In a memo to the commission dated Dec. 7, Langel said the Minnesota Department of Health is aware of the tap and advised against turning it back on. The tap is part of the city’s municipal water supply, and Minnesota law requires municipal water to be fluoridated. State law also requires chlorine to be used as the principal disinfectant for a water supply, and to further protect the water, no physical connection between the public water supply and any device is permitted unless protected by a backflow preventer.The tap does not have a backflow preventer, which is a device that would prevent someone from contaminating the water.

In its current location and configuration, Langel said the tap violates state law.

While adding a backflow preventer would be relatively simple, Langel said non-fluoridated water is still not permitted in a municipal water system.

“Furthermore,” he wrote, “it exposes the City to liability given that the reservoir water made available through the tap can be contaminated but is not disinfected. Knowing that this tap is prohibited by state law and may result in the release and consumption of contaminated water, it is not advised to turn the tap back on for access to the public.”

Johnson said he was disappointed with the advice but not surprised.

“You ask attorneys about anything, and they are going to give you the opinion that is of the least liability. So if it was up to attorneys, we would all live in individual-sized plastic bubbles, receive all of our food from a shake we get every morning, and there will be no risk in life and no innovation and nothing done to, like, further humanity,” Johnson said, noting he didn’t mean the non-fluoridated tap was furthering humanity.

He said he understood the need for a backfill preventer and said there must be a way to continue offering the tap, like putting a sign on it that says it’s non-potable.

The issue, he added, is twofold. First, it provides water to those who live outside city limits and rely on well water when their wells might be contaminated or need to be cleaned.

Second is the historical significance.

“Whether it’s good or bad, it’s kind of infamous,” he said of the city’s fluoridation battle, noting keeping the tap running would be a nod to what the city’s former leaders went through and why it exists at all.

He then asked if there was some way to make the tap non-municipal, whether that be through a permitting process or some other way.

Commissioner Mark O’Day said he doesn’t understand why people who don’t want to use the city’s water can’t just go to their friends’ houses on the outskirts of the city and get well water.

“I just have a problem with if you do have a bad well and then you start coming to BPU and getting your water and you’re sick because you used your bad water, do we get blamed for a lawsuit that’s waiting to happen when it’s your well that’s bad, not ours?” O’Day asked. “… I just don’t see why we should be supplying that, in my opinion.”

O’Day made a motion not to turn the tap back on, and Commission Chair Dolly Matten seconded it.

Johnson said he still wanted to explore the idea of adding a “non-potable” sign and a backfill preventer to the tap to see if that would legally let the city turn it back on. O’Day said he had already heard enough on the issue and thought commissioners were just beating a dead horse.

Johnson said there’s too much history to turn the tap off just because an attorney wrote a letter.

He was the lone vote against the motion.

*Original full-text article online at: https://www.brainerddispatch.com/news/local/brainerds-non-fluoridated-water-tap-to-remain-shut-off