A fifth-generation Coloradan, James Eklund is one of the region’s leading water attorneys, currently with Sherman & Howard where he leads the firm’s water and natural resources practice. He also manages his family’s Centennial Ranch, dating back to 1888, in the Plateau Valley on the Western Slope.
After law school, Eklund served as assistant attorney general, where he specialized in interstate and international water issues. He was later Gov. John Hickenlooper’s legal counsel, which later led to becoming director of the Colorado Water Conservation Board. Eklund was the architect of the state’s first water plan, released in 2015. He also represented Colorado on the Upper Colorado River Commission.
Colorado Politics: How did you get interested in water?
James Eklund: It was definitely on the ranch. Dinner time, lunchtime, breakfast conversations were usually abut some aspect of production agriculture or water and sometimes both. This is an era when you had to wake up early, we flood irrigated, you to turn the water down to the part of the field you wanted to hit that morning, then you’d go back in a couple of hours around midday and do it again, and you go in the evening and change your water again. That was every day during the growing season no matter what. That made the conversations about water and water management very real and practical.
CP: What’s the biggest water problem facing Colorado right now? Is it that people don’t take it seriously?
JE: I think people definitely take it seriously. It’s not that it isn’t high on people’s lists; they all know they need it. But in some ways we’ve done our job; the whole apparatus that gets water to your tap, the vast majority of that infrastructure is hidden. It’s just not visible. If a road deteriorates, it’s visible, you can feel it if you hit a bad pothole. Our water infrastructure is not like that, and that’s probably one of the biggest challenges. We’ve done a good job of managing it, water providers have done an amazing job.
If there’s a water main break in Denver, it’s fixed within 12 hours. Through no fault of their own, people take it for granted, that’s the water that comes out of my tap. That’s where it comes from. Same with food, it comes from the grocery store, I can afford it and always know that it’s there. The pandemic and the run on certain products woke people up to the fact that we have been taking this for granted and shouldn’t.
[Water] is incredibly cheap, and that’s also contributed to people being resistant to thing like a 2% to 3% rate increase.
We value what we love, but we value [water] very low. We’ve kept [prices] suppressed because everyone has to have it.
There’s a pretty linear relationship between supply and demand on other commodities, but not so with water.
It’s also true that you have to have irrigation to grow crops west of the hundredth meridian. Most people don’t know that. Everything west of that line, you have to irrigate (the line is about midway through the breadbasket states of Kansas, Nebraska, Oklahoma, about the exact middle of the country).
CP: What does the future look like without a big picture solution to the water crisis on the Colorado?
JE: Daunting. This is a perfect storm. Any one of the challenges are defeatable: we could address a drought year on the Colorado, we’ve dealt with that part. We can deal with population growth, we can deal with warmer ambient air temperature if we fight them one at a time. We can win those wars.
The problem is a multi-front battle, a bunch of dominoes where we ultimately end up with less water in our big reservoirs. It’s “spongification” of the Colorado plateau, which means water that does happen to run off into the system is getting intercepted by the [dry] soils.
The watershed used to do a pretty good job of filtering the water and putting it into the soil so that it was pretty moist to begin with. Not anymore with the beetle kill; unnaturally hot fires have sterilized the soil and there’s no microorganisms holding it together, and the dirt gets taken up by the water and put into creeks and reservoirs, and the sediment load is terrible, so the water quality sucks.
If we don’t get to a solution that puts water on a reliable and sustainable basis in the reservoirs we’ve created to manage the system, we can’t support the kind of economy that we’ve grown in the southwestern United States. [Ninety percent of the winter vegetables for the entire country are grown in Arizona and California.]
If we solve all our problems, what you might think is the most logical thing to do, which is to cut off agriculture in the lower basin, then we’ve really got some hard truths that we’re going to have to come to terms with at our local grocery store or local favorite restaurant. When we go to order iceberg lettuce, it’s not going to be there. That’s the daunting part of not solving this, it will hit every single person in the entire country.
Our political calendar is not syncing up with the hydrologic calendar and need to do it now. Back in June, when the Commissioner of Reclamation sounded the alarm, they were expecting us to come up with plans by mid-August and the states didn’t do it.
If it continues this way, we have the political calendar to blame. You go to these conferences and the refrain over and over again is that this is a crisis. We need to do something. But then it comes time to act and we’re not acting. The crisis in the inaction that’s set in is because people are nervous that if they act, they’ll get blamed by their opponent in the upcoming election. And they don’t want that kind of baggage. They don’t talk about it and they don’t ask, because at the end of the day there’s going to be winners and losers. In times of surplus, you can do solutions and everyone wins and everyone is happy. But in times of scarcity, like what we’re in now, you’re going to create some losers out there. Our prior appropriations system does it on a daily basis, based on seniority.
What’s scary about the Colorado River right now, and the water in the West generally, is that we don’t know if the priority system is going to get the job down. We don’t have that level of certainty on the Colorado because everybody’s kind of retreated to their corners. The government structure has failed, an it’s not coming up with the solutions.
The election is five weeks away. There’s little likelihood we will act before then. It’s very dismaying. It’s not the way it should work.
CP: How did you become involved with the Colorado Water Conservation Board?
JE: I was interning for Ken Salazar when he was attorney general. I was enamored by Ken, as many people are, and I volunteered for his re-election campaign. I wasn’t qualified to do anything, so I was his driver. I drove him around the state.
I credit cell phone technology being nonexistent at the time. He could either talk to me or sleep. He’s a gregarious guy, and said “here’s what you’re going to do, James. The people of Colorado need you to be a water lawyer. And then if you get a chance to be legal counsel to the governor, you will do that, and before you leave state government you need managerial experience before you go into the private sector.”
That’s what he did for [Gov.] Roy Romer, he was a water lawyer, legal counsel to the governor and then moved over to the Department of Natural Resources. I just did kind of the lower tier of what Ken did.
CP: Has the water plan worked the way you hoped? What does it need, besides money? Is the leadership in place to move it forward?
JE: You measure policy success or failure by whether or not people want to fund it after you’re done with it, or do they fight about whether we should have done it in the first place.
When I was dealing with the legislature in the crafting of the plan in 2013, 2014 and 2015, the attitude was “this looks like the proverbial third rail of politics; it’s water and we have to stay as far away from this as possible.” And they did. They were very skeptical. “We don’t know and we’re certainly not going to fund it. You’re going to have to find the money under the couch cushions to get it done.” Money was very tight back then (coming out of the recession).
We had to come up with our own way of funding it. A lot of it was sweat equity; I had to convince a bunch of state employees who were in very safe protected positions to spend their own time; they weren’t getting any more money, adn to take this on because it was the right thing to do.
My argument was that it would make their jobs easier, moving money forward out of the construction fund, or to get instream flows into some river in the middle of nowhere. The water plan would help you figure out which priorities you needed to tackle and to do triage.
Out of the mercy of their hearts, they came on. There was a critical mass that stepped up.
The water plan was successful in the last five years because it took this concept that was feared to be a third rail and turned it into something that was actually helpful to the average legislator or Joint Budget Committee member. They saw a value in it.
If there’s a problem with the water plan, you go back and look at the draft came out in 2015, it has a very specific timeline spelled out for updating it.
It was very intentional, a timeframe that would not make it political. The water plan came out in November, 2015; then you update the state water supply initiative (SWSI) in 2016 and 2017, and then in 2017 and 2018 the basin implementation plans get done. Then come 2019 and 2020 and you have an updated state water plan. Here we are in 2022, five weeks before the election, and the draft for public comment came out on primary day, June 28.
We didn’t have to put it on a political calendar where someone could say my opponents are for the water plan, so I must be against it. We could have sidestepped that whole dynamic by just putting the plan on a different timeline. There’s all kinds of reasons; contractors couldn’t get the SWSI update done in time, everything fell behind based on that. We lost a year in the pandemic.
In terms of the guts of the plan, we worked really hard putting in measurable objectives. One of the critiques I’ve heard is that the new draft lacks measurable objectives.
What we feared most was that the water plan was going to become a glossy report that sat on the shelf and collected dust. You wrote about that being a potential. It was a legitimate fear.
To keep that from being the case, we made the plan into something actionable. So to the extent the new version loses sight of that, that’s not a good thing.
CP: Does Colorado need a water czar, that high-level leadership of someone who’s watching every aspect of this, that 10,000-foot level person?
JE: Absolutely. There’s a huge distinction between leadership and the title. What we had with John Stulp was both. He’s a special person. He’s a state treasure like Russ George. There’s a handful of these people that you come across in public service that you want to clone.
There needs to be a governor’s senior advisor on water. The reason the decision was made in the Hickenlooper administration was because early on, the governor and his chief of staff (Alan Salazar) realized that there’s these governmental state agencies and water cuts across almost every one of them, whether it’s healthcare, public health, natural resources, ag, local affairs, even regulatory affairs.
It’s like the “Six Degrees of Kevin Bacon” game. You’re only three people away from Bacon in any movie. You’re only one or two steps away from water no matter what policy issue you’re working with.
[Polis hedged on whether he would have a water czar when he spoke to the Colorado Water Congress at its summer 2018 conference.]
When [Gov.] Polis said “no” it was unfortunate, because what I think he was trying to say is that “water isn’t going to be high on my list of priorities.” From my perspective, that represents a fundamental misunderstanding of the executive branch, coming over from Congress. You can pick which bills you want to run, and if water isn’t a thing, you don’t have to run a bill on that.
But when you’re in the executive branch, you’re working on whatever is on the front page of the paper that day and what will be on the front page tomorrow. Hickenlooper wasn’t interested in mass shootings or gun controls, and he didn’t want to deal with wildfires and flooding but he did the job that that’s what was required. Having a person that’s a senior water advisor or czar sitting at your right hand to help advise you is really a good idea.
