The forest's lawyer disagrees with the town's lawyer, but the town may get to drill exploratory wells under the Diamond Rim yet.
The proposal by the town of Payson -- to drill up to 15 exploratory wells and 13 secondary test wells to determine the presence or absence of a significant aquifer system -- was put on hold in June while the Tonto National Forest's lawyer issued an opinion regarding an opinion by the town's lawyer. At issue is whether the U.S. Forest Service has the legal right to consider the impact the project might have on the wells of nearby residents.
The matter was raised by Thomas Wilmoth, an attorney with Fennemore Craig Law Offices, the firm representing the town in its efforts to acquire a special use permit authorizing groundwater exploration in the Tonto National Forest.
In a letter to Rod Byers, lands staff officer for the Payson Ranger District, Wilmoth contended that "protection of third party well owners is not within the scope of the Forest Service's authority."
Wilmoth pointed out that "certain phrasing" in the Forest Service's NEPA (National Environmental Policy Act) scoping document "may inadvertently create in third parties the expectation of rights in groundwater not afforded under Arizona law."
According to Wilmoth, state law allows groundwater to be withdrawn "notwithstanding impacts to neighboring well owners, so long as the groundwater is put to a reasonable use."
At that point, Ed Armenta, head ranger for the Payson Ranger District, suspended the entire process pending a legal opinion from Forest Service lawyers, and threatened to pull the project permanently.
On Friday, Armenta said the forest's lawyer has finally responded.
"I looked at a draft letter from our attorney, and he basically contradicts everything that their lawyer said. That's what lawyers do," Armenta said, laughing.
Town Manager Fred Carpenter said he had not received a copy of the letter yet, but both he and Armenta agree the latest opinion means the town can move forward.
"It actually will," Carpenter said, "because we'll go ahead and finish the environmental assessment. It might have taken longer to get it moving if they thought we were right. It's sort of ‘yes' is ‘no' and ‘no' is ‘yes,' and you can quote me on that one."
"I think we can proceed based on what our lawyer is telling us -- that their water lawyer is out to lunch," he said.
Armenta said he has always been in favor of the project, but just couldn't accept the town lawyer's contention.
"We're not going to know anything if we don't look," he said.
Carpenter said a significant issue remains.
"Say the town goes out and finds water in phase one, and then we want to go ahead and get an environmental assessment and go for phase two. Well, OK, we get everything approved and we go ahead and spend millions of dollars putting water lines in and all of a sudden they jerk the permit on it because some guy two miles away claims we affected his well. That's the basic underlying problem and this does not cure that."
Armenta suggested the town might want to acquire any land it finds water on through a land swap or purchase.