French Creek effluent flap not going away

So now what?
That is the question on many people’s minds both in Custer County and the City of Custer after last week’s election saw Custer County voters by a 801-609 margin declare the discharge of any treated wastewater from the City of Custer’s wastewater treatment plant into French Creek or its tributaries within Custer County as a nuisance.
So now what?
For Custer County, state’s attorney Tracy Kelley said within the next 30 days she will file a declaratory action with the court asking it to make a ruling whether or not the county enacting the ordinance would be unlawful.
“In my opinion it would be an unlawful ordinance,” she said, adding she does not believe it’s fair to any of the involved parties to have an ordinance on the books the county cannot enforce.
Kelley said she believes the ordinance would be unlawful due to a state statute that says something authorized by a state law cannot be declared a nuisance. Because state law allows the city to establish water and sewer systems, lays out the process to do so, and the city satisfied in the eyes of the state (which issued the permit to move the wastewater plant discharge from Flynn Creek to French Creek), Kelley believes the ordinance would be unlawful and the county wouldn’t be able to enforce it.
That’s not the case, said Steven Beardsley of Beardsley, Jensen and Lee, the attorney for Preserve French Creek, the entity which gathered signatures to put the issue on the June 6 ballot.
“Of course they can enforce the ordinance,” Beardsley said.
Beardsley said Preserve French Creek did the entire initiative process correctly, despite, he said, the language put forth by Kelley on the ballot regarding the ordinance.
As for the City of Custer, Mayor Bob Brown said it’s business as usual, as the city is well into construction of the line that will take the effluent to French Creek, and moving the line would cost the city millions at this juncture.
“We aren’t changing anything until someone comes along and says something different,” Brown said.
Brown said the voting results on the issue didn’t surprise him, saying there was false information being disseminated, which he said he believes affected the way some voted. He also said some in the county were told they couldn’t vote on the issue if they didn’t live in certain areas.
Beardsley said his law firm sent the city a cease and desist letter regarding the ongoing construction of the force main to French Creek once the Custer County Commission canvassed and certified the ballots from the election.
Beardsley said he wasn’t sure if the city had received the letter yet as of press time, but said he was “quite certain” the city would ignore the letter.
“They are still going forward with their construction even though the public has voted it’s a nuisance,” he said.
Kelley said she isn’t sure how long the court will take to render a decision on the lawfulness of the ordinance, but she doesn’t expect much change regarding the project until the court is heard from.
Beardsley said Preserve French Creek wants the county to enforce the ordinance the best it can, while adding Preserve French Creek was ready to take the issue to state or federal court “to prohibit the pollution of French Creek.”
Should the issue ultimately see the city and Preserve French Creek go to court, Kelley said since the state issued the permit, she believes there would have to be some kind of contamination or cause of action that is stemming from the discharge into the creek, not from the issuance of the permit. The city likely won’t start discharging the effluent into French Creek until 2025.
“They (Preserve French Creek) could file action against the city. They could do that at any time,” Kelley said. “Those are expensive to move forward with, and I assume that’s the reason they have gone the course (ordinance petition) they did.”
Beardsley said he believes the issue will eventually be solved in court, and that Preserve French Creek believes this is an issue that affects all of Custer County, and also believes state and federal regulations were not appropriately abided by, and as such, Preserve French Creek will have a strong case if—or when—the case is heard in court.
“We will see how long they (the city) choose to ignore us,” Beardsley said. “If they do, we have no choice but to try to enforce it and enforce other laws.”
Kelley said the county likely wouldn’t be involved in any court case, unless the ordinance stayed on the books and there was no enforcement.
The yes votes on the ballot, which was a vote to declare the nuisance, carried the day in eight of the 10 precincts in the county. Hermosa, Fairburn, Buffalo Gap, Pringle, Custer Ward II, Bear Rock and Elk Mountain all had a majority of its voters cast a ballot in favor of declaring the nuisance, while Custer Ward I and Custer Ward III voters both cast votes against declaring the nuisance.
Voter turnout for the election was 16 percent of the county’s registered voters.