SD Supreme Court ruling will let Custer discharge treated wastewater into French Creek

Kids float down French Creek; a sign stands near the city of Custer's treated wastewater discharge point along Flynn Creek. (Courtesy photos)

A voter-backed ordinance from Custer County that sought to stop the city of Custer from discharging treated wastewater into French Creek is invalid, the South Dakota Supreme Court ruled Thursday .

The city requested a discharge permit from the South Dakota Department of Agriculture and Natural Resources in 2020. The city is working on an upgrade to its wastewater treatment facility, and chose to switch its discharge point to French Creek instead of rebuilding the discharge pipe used for Flynn Creek, which is the currently designated dump zone.

The upgrades are not yet complete.

Water advocates ask state Supreme Court to block city of Custer discharges into French Creek

A notice of the discharge permit application was published in a legal newspaper in late 2020. No one submitted comments during the 30-day comment window, and the department issued the permit in January of 2021.

Two years later, a group of locals organized a push to put an ordinance on the county books that would prevent the city from dumping into French Creek. The initiated measure passed 809-609 in June 2023.

It declared wastewater discharges into French Creek or any of its tributaries a public nuisance

The city did not alter its discharge plans.

French Creek Preserve Inc. filed a lawsuit, arguing that the legal notice of the permit hearing published in the Custer County Chronicle did not amount to “actual notice” of the permit application. The preserve wanted to force the city to follow the new ordinance upon completion of the treatment plant.

A circuit judge rejected the preserve’s argument, setting up a Supreme Court appeal. The justices heard oral arguments on the dispute in April.

The city won at the local level on the strength of a state law that says “nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.”

The state department has the legal authority to grant permits by statute, the circuit judge ruled, so the county ordinance is unenforceable.

On Thursday, the state high court’s justice agreed unanimously, handing a win to the city of Custer.

“Because the Ordinance attempts to prohibit what state law permits, the Ordinance is preempted by state law and invalid,” Chief Justice Steven Jensen wrote in the opinion.

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