James Eklund remembers having to work to get the Colorado River District’s trust before, when he was director of the Colorado Water Conservation Board and was seeking support for a state water plan.
He said when talks began on the plan it was “dead on arrival” among representatives of the Western Slope district.
“People were saying it’s the wolf in sheep’s clothing. It’s going to be an excuse for more transmountain diversions” of water to the Front Range, he recalls.
Eventually, a plan was agreed on that the district got behind. But these days Eklund once again finds himself in a battle to gain the district’s trust, now because of his work as a private water attorney representing a New York investment firm that has been buying up Mesa County agricultural land and associated water rights and leaving the river district nervous about its — and Eklund’s — intentions for that water.
Viewed from the river district’s perspective, Eklund is a Denver water attorney that the district fears is trying to help his client take advantage of a potential drought mitigation tool he helped set up, involving the storage of water in a dedicated account in Lake Powell.
But Eklund also is someone who was born in Grand Junction, to parents who own a family ranch in the Plateau Valley that his great-great-grandparents homesteaded in 1888.
He spent every summer there while growing up, and continues to visit and pitch in doing ranch chores to this day when time allows. Given that background, he insists that for all the river district’s concerns, there isn’t much daylight between it and him when it comes to the desire to protect the Western Slope and its water.
“I’ve got a personal family interest in the Colorado River,” Eklund said.
He said the river district wants the same thing he does — strong Western Slope agriculture and water that is not at risk.
“They want the Western Slope to control the Western Slope’s destiny, and I completely agree with that. Where we disagree, it sounds like, is how we get to that controlling our own destiny.”
A MEDIA CAMPAIGN?
The river district’s concerns about Eklund and Water Asset Management, the New York company that now owns more than 2,000 acres of agricultural land in the Grand Valley, were amplified as a result of a Jan. 3 New York Times article on Wall Street investments in the West, followed by a Denver Post guest column in support of temporary, compensated, voluntary fallowing of Western Slope irrigated land to bolster water levels in Lake Powell.
Andy Mueller, general manager of the river district, views the two pieces as part of a media strategy by Water Asset Management, and likely Eklund.
“It is an effort to discuss the virtue of free markets and water markets in the western United States and specifically in the Colorado River,” Mueller recently told the district’s board.
He also views it as an attempt to put pressure on the state and the Upper Colorado River Commission, which includes representatives from Colorado and other Upper Colorado River Basin states, to move forward quickly with a proposal for managing water demand in times of droughts through measures including fallowing by farmers and ranchers, without safeguards to protect local economies.
“I think we need to call it out, as we’re doing right now,” Mueller told his board.
Agricultural, municipal and other water conserved under a demand management program would be stored in a separate account in Lake Powell as provided for under a drought contingency plan involving the states. It would be available to ensure adequate delivery of water to Lower Basin states as required under a 1922 interstate compact, in order to avoid a potential “compact call” under which Upper Basin water uses could be curtailed to meet delivery obligations.
The river district long has been insistent that water conserved through demand management be temporary, compensated and voluntary, concepts the Colorado Water Conservation Board has committed to as it explores the idea.
The river district also wants the impacts of conservation shared proportionally among users in a way that Western Slope agriculture and ag-based communities are protected.
Mueller also long has been concerned that some entities might push to set up individual accounts within the pool of water created through demand management, to protect water diversions for municipal utilities while Western Slope agricultural use gets shut down under a compact call.
Theoretically, water in those accounts could come from investment firms buying up Western Slope agricultural land and water rights.
Mueller believes Eklund is lobbying for such accounts, based in part on the Times article exploring the concept of a market-based approach to western water that could result in more water being moved from agriculture to municipal use.
If that’s true, it could be argued that Eklund is gaming the very system he helped set up. He served as Colorado’s representative to the Upper Colorado River Commission during the negotiations leading to the drought contingency plan agreements, including establishment of a separate storage account in Powell.
“We have long been vocal about our concerns about demand management, and I guess if anything, this clearly demonstrates that we were not simply being paranoid or unreasonable in our concerns,” the river district’s new board president, Marti Whitmore, said at its recent meeting, referencing Eklund’s work on behalf of the concept during his time as CWCB director and on the Upper Colorado River Commission.
But Eklund said he isn’t pushing for private water accounts in Powell. Only sovereigns can hold water there — not special districts, private entities or individuals — he said.
“That’s always been the case. That always will be the case as far as I can see,” he said.
He said it’s also the way it should be, and he wouldn’t lobby to change something he doesn’t believe in.
Eklund said allowing only sovereigns to hold water in the reservoir is linked to the bargain Upper Basin states got from the 1922 compact. That deal assured that Upper Basin states could develop water at their own pace, as opposed to fast-growing places such as southern California getting their hands on the bulk of Colorado River water.
Mueller told The Daily Sentinel that he knows Water Asset Management has been directly in contact with several Front Range water utilities arguing for their support for individual accounts in Powell.
“James Eklund himself was in the halls of one of the water utilities while I was there, doing exactly that, meeting with them and trying to lobby them for their support on those individual accounts,” Mueller said.
“That’s an amazing accusation,” Eklund said when told of Mueller’s comments. He added that Mueller’s assertion is “flat-out false.”
River district officials haven’t specified what utility Eklund supposedly spoke with.
Denver Water spokesman Todd Hartman said, “Mr. Eklund has not been lobbying us on the matter of private accounts, and certainly has not done so in our hallways, as they’ve been largely empty since remote work began amid COVID-19 in March of last year.”
Hartman added that “Denver Water is in opposition to the concept of private water storage pools in Powell, as is the law. Private sector entities don’t have the legal ability to manage water across state lines nor within federally owned reservoirs. This can only be done by the states and the federal government.”
Eklund said he understands the river district’s nervousness about what’s being characterized as outside investments in Colorado water. Its job is to protect West Slope water, he said.
“That is the exact same thing that I went into private practice to do,” he said.
‘IN THE WRONG PLACES’
For the river district, articles like the Times piece raise questions about the intentions of Water Asset Management and its legal representative Eklund. While the Times article, written by Ben Ryder Howe, raises caveats when it comes to water markets, such as by pointing to negative impacts of such an approach in Australia, Mueller considers it is a one-sided piece generally touting the approach.
From his perspective, it starts off on the wrong foot, saying that despite the myth in the West about there not being enough water, “those who deal closely with water” will say there is plenty, but it’s “just in the wrong places.”
In a memo to his board, Mueller said the article’s premise is that the current distribution and uses of Colorado River water are “wrong” and the governing structures allowing them should be replaced “by a Wall Street driven unconstrained free market system which moves water from the rural southwest to major urban centers based solely upon the monetary value of water.”
Mueller told The Daily Sentinel that water in Colorado belongs to the people, subject to the right to be appropriated for beneficial use.
“We’re looking at investors coming into the state and looking for opportunities to use our water for their personal profit.”
He said Water Asset Management views water scarcity on the Colorado River as an opportunity to make money by moving water from rural to urban areas. The district believes investment firms are angling to speculate on Colorado’s water, contrary to Colorado’s antispeculation laws when it comes to water. A state task force is looking at strengthening such laws.
The Times article was followed within days by a column in the Denver Post by Brian Richter bluntly headlined, “Western Slope needs to suspend irrigation to avert water shortage catastrophe,” in which Richter supports agriculture playing a role in helping boost Powell water levels.
Richter led the Nature Conservancy’s global water program, the column tagline notes. But Mueller says the tagline failed to note financial ties Richter has to the company, and that Richter teamed up with co-founder Disque Dean to attract investment capital.
Mueller told his board that Richter didn’t get his column into the Post without connections, and it was placed “by somebody with a pedigree very similar” to Eklund’s.
INVESTMENTS ON THE LAND
Regarding Mueller’s suspicions that Eklund undertook a media campaign on behalf of Water Asset Management, Eklund said he played no role in Richter’s column running, and the Times reporter called him for the story the reporter was working on.
He said all he and Water Asset Management can do is “make sure we walk the talk” by the company not taking actions such as flipping water for profit and being involved in buy-and-dry schemes to move water off agricultural lands. Eklund said it hasn’t done such things during three years of being invested in the Grand Valley. Rather, he said it is investing in improvements, boosting efficiency, sequestering carbon in soils and keeping land in production.
Eklund said he doesn’t represent companies that speculate on water, and antispeculation is important to him just as it is to the river district.
“If what they’re talking about is limiting who gets to buy and sell Colorado water and for how much, that’s a different conversation,” he said. “We’d have to talk about that.”
Said Zane Kessler, the river district’s director of government relations, “That’s not what we’re talking about at all. We’re talking about protecting the long-term interests of our agricultural economies on the Western Slope. It’s clear that (Eklund’s) clients’ interests are not congruent with the interests we are charged to protect and represent.”
He said the New York firm already has shown a willingness to engage in buy-and-dry type activities in Lower Basin states.
Eklund says he wouldn’t represent a client he thought would be negative to Colorado agriculture. He points back to his own family’s deep local agricultural roots, and the teepee poles that were still on the land when his ancestors homesteaded it after the U.S. broke a treaty with the Utes.
“This is an incredibly important aspect of our ranch — it demonstrates that we are relative newcomers to a special place and we owe a duty of care for the land and water to not only our forebears, but to the Ute people as well,” he said.