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Custer can dump sewage into the creek

A ballot initiative to stop the city of Custer from discharging wastewater into French Creek is invalid because it violates state law, the South Dakota Supreme Court ruled Wednesday. The ruling upholds the city’s ability to legally proceed with the $2.98 million project.

In November 2020, the city filed a permit application with the South Dakota Department of Agriculture and Natural Resources to discharge wastewater into French Creek downstream of Stockade Lake. The department issued the permit in January 2021 with effective dates of April 1, 2021 through March 31, 2026.

The city’s sewage treatment plant currently pumps treated water nearly eight miles uphill to Flynn Creek through a pipeline built in 1985.

The need for updates arose due to the deterioration of the current system. Several sections of the pipe required urgent repairs in 2018. There were also six fecal coliform violations between 2009 and 2013 at the golf course pond and a sewer overflow in April 2014.

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In 2023, opposition to the city’s plan materialized in the form of a ballot initiative declaring the discharge of wastewater into French Creek a nuisance. Fishermen and landowners expressed concerns about how the wastewater could affect fish populations and water quality in the creek.

Voters approved the ordinance in November of that year and Custer County ratified the vote.

A group formed by Custer County citizens — Preserve French Creek, Inc. — sent a letter to the city the day after the vote, asking it to halt construction. The city did not respond, and the group filed a lawsuit against the city and county in state court.

The court asked it to compel the governments to “fulfil their duty to abate the reported nuisance” and to stop claiming the ordinance was invalid.

Ultimately, the trial court and the Supreme Court ruled in favor of the city and county’s arguments that the ordinance violated state law, specifically SDCL 21-10-2, which states that “nothing done or maintained under the express authority of a state law shall be deemed a nuisance.”

Municipalities are authorized under state law to maintain wastewater treatment plants under regulations set by the SD Department of Agriculture and Natural Resources. Because the city followed the proper process to obtain the department’s permit — which included publishing a notice in the Custer County Chronicle in December 2020 — it did not violate any laws in the process.

The city selected French Creek from options presented by DGR Engineering in a 170-page facility plan. The city hired the firm to study the city’s wastewater discharge and present several plan options for the city’s wastewater treatment plant and discharge.

DGR estimated that replacing the current Flynn Creek pipe would cost more than $7 million. The French Creek plan, however, had a price tag of $2.98 million, and the pipe that would carry treated wastewater to French Creek would be 3.5 miles long and run downhill.

City Councilwoman Peg Ryan previously told the Journal that cost and the length of the route were both factors in choosing French Creek as a discharge point.

The project is still under construction and is expected to be completed in 2025.

Contact Shalom Baer Gee at [email protected]

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