Preserve FRENCH CREEK Actions | Save French Creek

Preserve FRENCH CREEK Actions:

• October – November 2022:

Preserve FRENCH CREEK provided a presentation to the Custer Mayor and City Council wherein alternatives to polluting FRENCH CREEK were given.

No questions were allowed to be asked of the Mayor or Council at this meeting, and no feedback was received. No response was ever given to the alternatives presented by the concerned citizens present.

The same presentation by Preserve FRENCH CREEK was given to Custer County Commissioners at their meeting and a letter requested from the Commission to the City of Custer in support of the City of Custer’s continued use of its current Flynn Creek wastewater discharge location.

The Commissioners agreed to do this, and a letter was sent to the City of Custer.

A third Preserve FRENCH CREEK presentation, identifying problems with the process that lead to the current permit given the City of Custer, was provided staff of South Dakota Department of Agriculture and Natural Resources (DANR) in Pierre, South Dakota.

Following the presentation, Preserve FRENCH CREEK requested that the permit approved by DANR for the City of Custer be withdrawn in order that public participation in the process could be reopened and other alternatives to dumping wastewater into a clean FRENCH CREEK considered. No action was taken by DANR regarding this request.

• December 30, 2022:

Despite requests for reconsideration and the repeatedly expressed opposition of Custer County concerned citizens to the City’s plan to discharge its sewage wastewater into FRENCH CREEK at bimonthly Custer City Council meetings, the City chose to move from Phase I construction under its Wastewater Facility Plan to Phase III – Construction of a Wastewater Pipeline to FRENCH CREEK from its Wastewater Treatment Plant.

Previously, Preserve French Creek members had been told by City officials and its Contractor

that Phase III, pipeline construction to FRENCH CREEK, was not scheduled to begin until the Fall of 2023.

• January 2023: Preserve French Creek members began circulating petitions for a Custer County ballot Initiative declaring the discharge of any treated wastewater from the Custer Wastewater Treatment Plant into FRENCH CREEK a Nuisance.

• March 8, 2023: Custer County Commissioners recognized that the required number of petition signatures had been obtained and verified. Preserve French Creek and the Commissioners agreed at this meeting to place the Nuisance Initiative on the June 6, 2023 Ballot.

• June 6, 2023: The ballot Nuisance Initiative to not discharge wastewater into FRENCH CREEK was passed overwhelmingly by Custer County voters, and on June 8, 2023, Custer County Commissioners certified its passage.

• June 9, 2023: Following no indication that Custer City was going to stop pipeline construction to FRENCH CREEK, or that the Custer County State’s Attorney was going to enforce the Nuisance Ordinance vote of Custer County residents, a Cease-and-Desist letter was sent to the City of Custer.*

*As the City’s wastewater pipeline construction continued, Preserve French Creek, Inc. petitioned the 7th Circuit Court of South Dakota with a Writ of Mandamus to require that the majority vote of Custer County residents FOR implementation of the Nuisance Initiative be enforced.

• November 2023: Following the 7th Circuit Court ruling that Mandamus relief was not applicable, Preserve French Creek, Inc. filed an Appeal with the South Dakota Supreme Court.

• April 2024: The Supreme Court heard oral arguments regarding Preserve French Creek, Inc.’s Appeal of the 7th Circuit Court decision. In July, the Court ruled that State law superseded Custer County authority to enforce the Initiative passed by its residents. Therefore, the Nuisance Initiative could not be enforced.

• Summer and Fall 2024:

Several Preserve French Creek members signed on as volunteers to assist the SD-DANR with water quality monitoring on lower French Creek and completed the required State training to do this.
Preserve French Creek members worked with recognized environmental engineers and fisheries experts to develop a 5-year scientific study to monitor the waters of lower FRENCH CREEK. Testing sites along the Creek were determined and the first evaluations under the Study were completed in October.

• May 2025: Preserve French Creek, Inc. filed a Federal Court request for Injunction to stop the discharge of sewage wastewater into FRENCH CREEK until a review of the 2021 Permit and processes allowing the City of Custer its ability to discharge wastewater into FRENCH CREEK could occur.*

*Approximately two weeks after this filing, the City of Custer published its intent to begin discharging wastewater into FRENCH CREEK “in the next week” in the local newspaper.

*An immediate Restraining Order was sought by Preserve French Creek and a determination made by the Federal Court to halt any discharge into FRENCH CREEK until a Ruling on the Federal Injunction request is made.

• March 9, 2026: After agreeing with several points raised in our case, the Judge ultimately ruled to Dismiss due to (1) Clean Water Act criteria did not apply, as no wastewater had been released into French Creek at the time of filing. (2) Case filed after the 3 year Statute of Limitations had expired, which he determined began the day the Surface Wastewater Discharge permit was signed as approved by DANR Secretary Roberts in 2021.

*No consideration was given the fact that Preserve French Creek members and Custer County residents were unaware of the City’s plan until more than a year later, or their consistent objections – via presentations and meetings with city, county and state government, the passage of a County Nuisance Initiative addressing wastewater discharge, and two earlier court cases occurring since that time.

• March 10, 2026: SD-DANR published Notice of the Sylvan Lake Complex SWD Permit application for Public Comment. In the Notice, it described French Creek as a “full-immersion” water tributary. A new classification by the State and one that Preserve French Creek has repeatedly pursued (from the listed “partial immersion” waters).

• April 1, 2026: SD-DANR published Notice of the City of Custer SWD Permit renewal (of its 2021 permit listing French Creek as the new discharge location). The new permit introduces more stringent treatment requirements due to new designation by the State of French Creek as “full immersion” waters, but:

*The new requirements allow the City three years (until 2029) from the date of the Permit (approval) to meet new ammonia nitrogen.

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URGENT!

Please provide comments to South Dakota Department of Agriculture and Natural Resources in opposition to

City of Custer South Dakota DRAFT Surface Water Discharge (SWD)

Permit No. SD0023281

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Comments may be mailed to:

South Dakota Department of Agriculture and Natural Resources

Water Quality Program

Joe Foss Building

523 East Capitol

Pierre, SD 57501

Or emailed to: http://danr.sd.gov/public

Deadline for Public Comment: May 1, 2026

The Public Notice, Draft Permit, and Statement of Basis (for the Permit) can be found on the DANR website at http://danr.sd.gov/public

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Consider becoming a member of Preserve French Creek, Inc. at $10 per month ($120 annually) or donate any amount to keep French Creek clean. Donations to our non-profit are tax deductible.

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