Preserve French Creek takes wastewater battle to federal court, alleging Clean Water Act violations and civil rights concerns
CUSTER, S.D. – A group of Custer County residents is taking the city of Custer to court in an effort to block the city’s project to expand its wastewater services.
Preserve French Creek is back in court for a second time – this time federal court – after losing a lawsuit in the state court system. The lawsuit also names the South Dakota Department of Agriculture and Natural Resources, as well as various Custer and state officials.
The nonprofit group formed in 2023 to fight the wastewater expansion. That expansion called for the city to discharge treated wastewater into French Creek.
The city already discharged treated wastewater into nearby Flynn Creek. But a study for the treatment plant expansion concluded that it would be less expensive to discharge the water into French Creek because the discharge point would be closer, requiring less pipeline.
Custer went through the process of obtaining a new permit from the DANR in 2021. There was no opposition to the request during the 30-day review period. But when plans crystalized, opposition mounted. Residents in Custer County collected enough signatures to take the issue to a public vote in 2023.
And they succeeded. In June, 2023, voters in the county approved a ballot issue 809 to 609 that declared treated wastewater released into French Creek was a nuisance. But the city disregarded the vote and continued work on the project, and Preserve French Creek took the city to court.
A circuit court judge ruled against the group, arguing the ballot measure conflicted with state law. Preserve French Creek appealed to the South Dakota Supreme Court. In a 5-0 unanimous decision last year, the Supreme Court upheld the circuit court decision, determining that state law allows cities to operate wastewater treatment plants, including the discharge of treated wastewater.
The federal lawsuit alleges the city failed to follow pollution control measures under the Clean Water Act. Preserve French Creek contends that DANR failed to allow for a proper comment period required under state law. Nor did the department conduct a proper analysis of the surface water discharge permit. The department only considered criteria for cold-water marginal fish and limited recreation, as opposed to persons who could be affected by the discharge.
“Upon information and belief, there are approximately 40 drinking wells within the first 5 miles of the effluent discharge point on French Creek, located as close as 52 feet from the creek,” the lawsuit says.
The lawsuit alleges that Custer’s plan for French Creek would increase allowable ammonia and phosphorous levels that would affect the biological integrity of French Creek and adversely threaten the aquatic life in the creek.
The city and state have not responded. Because the state has been named a defendant, the Attorney General’s Office will be charged with defending DANR.
Custer Mayor Robert Brown said the Preserve French Creek advocates were “persistent.” But he thinks they are fighting a losing battle, particularly after the court fights they’ve already lost.
“I think it’s wasting people’s time,” he said. “I’m about 99 percent sure the court is going to put it out.”
The Department of Agriculture and Natural Resources said that it does not comment on pending litigation.
The lawsuit accuses the city of violating civil rights, the Clean Water Act and state law. Preserve French Creek is represented by Steven Beardsley and Conor Casey of Beardsley, Johnson and Lee in Rapid City.
