French Creek lawsuit dismissed

A federal judge has dismissed a federal lawsuit aimed at preventing the City of Custer from discharging effluent into French Creek, seemingly clearing the path for the City of Custer to begin the discharge nearly a year after reconstruction and renovation work was complete on its wastewater treatment facility.
In a ruling issued March 9, the United States District Court, District of South Dakota, Western Division,  granted the defendants’ motion to the dismiss the lawsuit without prejudice. The defendants included former mayor Corbin Herman, who was mayor at the time the plans to renovate the wastewater plant and move the discharge location were first approved; along with the City of Custer; “unknown officials” of City of Custer; “unknown officials” at the South Dakota Department of Agriculture and Natural Resources (DANR); Hunter Roberts, secretary of DANR; and DGR Engineering, the firm that has helped lead the city through the wastewater plant renovations. The lawsuit was brought by Preserve French Creek, Inc.
The dismissal without prejudice does leave a crack in the door for a future suit, as it means the case is not permanently closed and could be filed again.
However, the City of Custer is now moving forward with the process of gearing up the wastewater treatment facility to discharge into the new location.
“I’m thankful it’s over. We can move on and save the taxpayers money discharging into French Creek,” City of Custer Mayor Bob Brown said. “I’m glad we won. It would have been bad if we had (spent) all that money for nothing.”
Trent Bruce of DGR Engineering said it will take about two months to complete the task of getting the system up and running and discharging to the new location, adding most of that is demo after the transition is made.
“We are shooting for a June 1 completion if everything falls in line,” Bruce said. “We still need to have a few conversations to coordinate details.”
When filed, the federal lawsuit alleged in pursuit of a Surface Water Discharge permit, the defendants (city, etc.) violated Preserve French Creek’s constitutional right to due process, violated state and federal law and were are on the precipice of causing irreparable harm to French Creek.
The lawsuit further alleged the city failed to provide actual notice to “persons potentially affected” by the discharge location, and that the opportunity for public hearing must be allowed regarding the permit.
The lawsuit also alleged that because the state received approval from the Environmental Protection Agency, it is authorized to implement a National Pollution Discharge Elimination System program under the Clean Water Act (CWA) and violated the CWA.
Preserve French Creek had also filed suit in state court after having a judge rule against it in circuit court. The matter was appealed to the South Dakota Supreme Court two years ago, where the high court ruled in a 5-0 unanimous decision to uphold the circuit court’s decision.
The city has maintained the entirety of the time the lawsuits were active there was a public hearing on the discharge permit that was approved by the state and maintained it followed all of the procedures as required by law and was justly given the SWD permit by the state.
In his ruling, chief judge Roberto Lange ruled Preserve French Creek’s CWA claim was “not ripe for this court’s review” because there has not been effluent discharged in the new location yet.
“If the city had discharged effluent into French Creek, the city had obtained the permit, which allows it to discharge effluent into French Creek under certain restrictions imposed by the permit,” Lange’s opinion states, adding if the city remains compliant with the permit it is compliant with the CWA.
Both the DANR and the city argued Preserve French Creek’s procedural due process claim was past the state’s three-year statute of limitations, saying its procedural due process claim begin when DANR issued the permit Jan. 13, 2021, meaning it would have run out Jan. 12, 2024. The federal lawsuit was filed May of last year. Thus, Lange wrote, the due process claimed is barred by statute of limitations.
The ruling brings to an end—at least, for now— a five-year fight between the city, which wants to discharge effluent into French Creek just down Lower French Creek Road in what it says is an effort to save money, and Preserve French Creek, which argued doing so would be detrimental to the creek, wildlife, their property values and quality of life, among other arguments over the years.
The city currently discharges effluent into Flynn Creek and has for years.
While the issue was tied up in court it was costing the city to have the updated system on hold, including fees from the contractor and DGR, which combined totaled over $20,000.
A message left for a Preserve French Creek attorney was not answered prior to press deadline.