French Creek effluent could be declared nuisance

When the June 6 election comes this spring, the residents of Custer County will have an opportunity to decide whether discharging water from the City of Custer’s wastewater treatment plant into French Creek will be declared a nuisance by Custer County.
Whether or not that impending vote will be anything more than symbolic? That’s up for debate.
The Custer County Commission, at its March 8 meeting, approved an initiative petition brought forward by the members of Preserve French Creek, Inc., that will send the wastewater effluent issue to the voters. The petition was submitted prior to the commission meeting and has official language asking voters to declare “Discharging any treated water from the Custer City, South Dakota, sewage treatment plant into French Creek or its tributaries, within the boundaries of Custer County, South Dakota, as a nuisance.”
The nuisance is the latest move by the Preserve French Creek group to prevent the City of Custer from relocating its effluent discharge from Flynn Creek to French Creek. The effluent relocation is part of the city’s ongoing wastewater treatment plan upgrades.
Steve Beardsley, legal council for Preserve French Creek, cited South Dakota Codified Law 7-18A-13  as a basis for the election. The law states if a petition is filed with the auditor the commission must take it up at its next meeting and “shall enact the proposed ordinance or resolution and shall submit it to a vote of the voters in the manner prescribed for a referendum within 60 days after the final enactment. However, if the petition is filed within three months prior to the primary or general election, the ordinance or resolution may be submitted at the primary or general election.”
The commission indicated it had no issue with the election taking place, but asked that it happen during the June 6 election rather than during a special election, which would cost the county $21,000.
“When we started this process, the folks came forward and we felt we didn’t have a standing in it and told them to follow procedure and take a path we can legally do,” commission chairman Jim Lintz said. “They did that.”
Beardsley said if the commission decided not to hold the election his clients would be forced to go to the court and get what is known as a writ of mandamus, which is an order from a court to a government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion. Failure to do so in the face of a writ of mandamus could lead to commissioners being held in contempt, Beardsley said.
Commissioner Mark Hartman said that wouldn’t be necessary.
“It’s clear we’re going to have the election,” he said. “They got the signatures and it’s under statute. There’s not a question in my mind.”
Beardsley said he would consult with his clients but felt there would be no issue in pushing back the election outside the 60-day timeframe to allow for the votes to be cast during the June 6 city/school election.
“I think the voters should have an opportunity to vote on this and we’ll see where the chips fall,” he said.
Custer County State’s Attorney Tracy Kelley indicated it was her belief the vote ultimately wouldn’t make a difference, citing an already settled court case while saying both state and federal law would preempt  the ordinance the county would enact, rendering it unenforceable. The state’s Department of Agriculture and Natural Resources issued the city’s permit to discharge into French Creek, saying the treated effluent will meet or exceed all regulations required by the state.
“I do have concerns the county has jurisdiction over the issue,” Kelley said. “I’m not one to leave an ordinance on the books that can’t be enforced. Sometimes that happens and the law says if you have an illegal or unenforceable ordinance on the books it’s as if it doesn’t exist. I think when it does exist on the books it creates additional problems down the road.”
Beardsley said the election was a no-lose situation, saying if the petitioners won, the position of county residents would be known and the commission could decide how to proceed. If the petitions lose, the county’s part in the issue was over, he said.
The issue came up again during public comment time later in the meeting, with Hartman asking city alderwoman Peg Ryan if the current force main to Flynn Creek would be abandoned. Ryan said it would stay in place “in case it’s needed,” but said “the fact is it’s failing in may places and it has become unrepairable. But it’s going to be capped.”
Ryan also asked the commission what would happen if the initiative does pass. Some on the commission predicted the issue would eventually end up in court.
Ryan said the city’s attorney, Teri Williams, said since the state has permitted the project the nuisance ordinance wouldn’t change the direction of the project.
“You’re going to go through this exercise, but it’s not going to mean anything,” she said. “That was our understanding. It’s a moot point.”
Commissioner Craig Hindle said since the petitioners went through the work of gathering the required 375 signatures of registered voters in the county, they were due an election.
“We owe it to them,” Hartman added.