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Photo via PixabayWho Determines Ownership of Water Rights in Texas?

Feb 24

TSTA Weekly Update, 02/24/2022


 
Weekly Update from the Texas Seed Trade Association
 
Member News
 
Horseshoe Bay Resort
February 13-15, 2022
 
´╗┐Texas Seed Trade Association Annual & Membership Meeting
 
Outgoing President Doug Richards (left), Rice Tec, receiving a token of our appreciation for his successful tenure as the association's top officer from the association's exec. Bryan Gentsch. Thank you Doug for a GREAT job!
 
 
In an effort to update and maintain our membership records we request you take a few moments and fill out the very brief info request at the following link.
 
 
The link is secure and the information will be used internally by the Texas Seed Trade Association and never shared without your permission. This request is on behalf of your association's board of directors and officers and we greatly appreciate your cooperation. Thank you!
 
2/24/2022 - If you have not updated your information please take a moment and do so now. We appreciate it! We continue to update this database and need your input!
 
David Gibson, the association exec at Texas Corn Producers, passed along a request to all Texas Ag Council Members via Chairman Kody Bessent. Please take a minute and participate in this important survey - it only takes five minutes.
 
(From David) TAC members, please respond to this and encourage your members to respond. This is a project the Agriculture working group has been working on. We had members use the ET data a significant amount of time when scheduling irrigation when it was done by TAMU. It can be a good tool to use in managing water.
 
The following note from TWDB has the link to complete the survey. It is a very short survey, again please fill it out and encourage your members to participate.
 
Dear Stakeholder in Texas Water,
 
The Water Conservation Advisory Council (WCAC) is seeking your help to determine the level of stakeholder interest in advancing and supporting accessibility of evapotranspiration (ET) data in Texas. Many stakeholders currently and historically have relied on ET data to effectively manage and communicate irrigation best management practices. The WCAC is interested reliable ET data because of the many water management benefits for agricultural and municipal water users.
 
Please help us by providing your valuable feedback and complete the 5-minute survey by Friday, February 25, 2022. 
 
Click here to take the survey: ET Data Survey
 
About ET Networks
ET networks are made up of local or regional weather stations to provide information to support irrigation and water management activities. ET is a measurement of the total amount of water needed to grow plants and crops. This term comes from the words evaporation (evaporation of water from the soil) and transpiration (transpiration of water by plants). Different plants have different water requirements, so they have different ET rates. Calculating ET requires the measurement of solar radiation, wind, relative humidity and temperature with specific sensors, and it is widely used for irrigation water management and crop production. ET network weather stations are equipped to measure data, a system to calculate plant water requirements, and a method to share this information to end users. Access to ET data across the state is currently limited.
 
About WCAC
The Water Conservation Advisory Council, created by the Texas Legislature in 2007, establishes a professional forum for the continuing development of water conservation resources, expertise, and progress evaluation of the highest quality for the benefit of Texas. Appointed by the Texas Water Development Board, the WCAC includes representation of twenty-three entities and interest groups. Learn more at www.savetexaswater.org.
 
The primary elections - VOTE!
 
There are a number of state house members who are in challenging primary and general races. These leaders are important to Texas agriculture and business and have earned our support. Early voting for the 2022 Primary ends tomorrow, Friday, February 25th. The Primary Election will be held next Tuesday, March 1st. Please encourage your family and friends to vote and support these House Members.
 
Stephanie Klick, HD 91, Tarrant County
Ryan Guillen, HD 31, Atascosa, Brooks, Duval, Jim Hogg, Kenedy, La Salle, Live Oak, McMullen, Starr, Willacy Counties
Glenn Rogers, HD 60, Palo Pinto, Parker, Stephens Counties
David Spiller, HD 68, Montague, Cooke, Throckmorton, Young, Jack, Shackleford, Eastland, Brown, Comanche, Mills, San Saba, Lampasas
Lynn Stucky, HD 64, Denton, Wise Counties
Andy Murr, HD 53, Bandera, Crane, Crockett, Kerr, Kimble, Llano, Mason, Mccullough, Medina, Menard, Pecos, Real, Schleicher, Sutton, Upton Counties
Valerie Swanson, HD 150, Harris County
 
James White for Texas Ag Commissioner
 
For an interesting article click here to read a recent report by Politico.
 
 
News Bits
 
Corteva, a member company of the TSTA, is hosting a webinar first thing tomorrow morning on "Making Sense of Carbon Markets." We had questions at our annual membership meeting last week about where one could go to learn more about this emerging market. Click here to pre-register for the 8:00AM meeting on Friday.
 
Prospects of a broader Russian invasion of Ukraine are pushing up U.S. wheat futures on concerns the crisis could affect exports from the two countries.
 
The Kansas City March wheat futures contract for hard red winter closed Wednesday at nearly $9.14 per bushel - up nearly 32 cents for the day. Likewise, the Minneapolis March contract for spring wheat rose nearly 15 cents Wednesday to close at $10.01.
 
By way of comparison, the Kansas City March HRW wheat futures contract closed on Feb. 3 at $7.50 per bushel.
 
"It's about 29% of the global wheat exports that come out of the Russia-Ukraine region, so it's a big deal if - and it's still a big if - wheat exports get disrupted," says StoneX analyst Ryan Turner. "The rest of the world ... would have to pick up the slack and that's why the markets are running higher."
 
Keep in mind: USDA's Foreign Agricultural Service predicted earlier this month that Ukraine would export a record-breaking 24 million metric tons of wheat this year.
 
USDA's National Agricultural Statistics Service (NASS) released the results of the 2021 Hemp Acreage and Production Survey in its National Hemp Report. The survey collected data for hemp grown in the open and hemp under protection. Planted area for industrial hemp grown in the open for all utilizations in the United States totaled 54,152 acres.
 
Area harvested for all utilizations totaled 33,480 acres. The value of U.S. hemp production in the open totaled $712 million. The value of production for hemp that was grown under protection in the United States totaled $112 million. Area under protection totaled 15.6 million square feet.
 
Broken down by utilization, U.S. totals for hemp grown in the open in 2021 were:
• Floral hemp production was estimated at 19.7 million pounds; utilized production totaled 15.7 million pounds. Area harvested for floral hemp was estimated at 15,980 acres. The average yield for floral hemp was estimated at 1,235 pounds per acre. The value of floral hemp totaled $623 million.
 
• Hemp grown for grain totaled 4.37 million pounds; utilized production totaled 3.96 million pounds. Area harvested for hemp grown for grain was estimated at 8,255 acres. The average yield for hemp grown for grain was estimated at 530 pounds per acre. The value of hemp for grain totaled $5.99 million.
 
• Hemp grown for fiber was estimated at 33.2 million pounds; utilized production totaled 27.6 million pounds. Area harvested for hemp grown for fiber was estimated at 12,690 acres. The average yield for hemp grown for fiber was estimated at 2,620 pounds per acre. The value of hemp grown for fiber totaled $41.4 million.
 
• Production of hemp grown for seed was estimated at 1.86 million pounds; utilized production totaled 1.68 million pounds. Area harvested for hemp grown for seed was estimated at 3,515 acres. The average yield for hemp grown for seed was estimated at 530 pounds per acre. The value of hemp grown for seed totaled $41.5 million.
 
Broken down by utilization, U.S. totals for hemp grown under protection in 2021 were:
 
• Production of hemp for transplants and clones totaled 20.2 million plants; utilized production totaled 18.0 million plants. The value of hemp grown under protection for transplants and clones totaled $23.8 million.
 
• Production of floral hemp was estimated at 310,421 pounds; utilized production totaled 256,124 pounds. The value of floral hemp totaled $64.4 million.
 
• Hemp grown for seed totaled 4,059 pounds; utilized production totaled 3,121 pounds. The value of hemp grown for seed totaled $23.7 million.
 
DEPT OF JUSTICE STARTING NEW INITIATIVES TO MONITOR PRICE COLLUSION
By Todd Neeley, DTN
 
Lincoln, NE - As agriculture and other industries continue to fight supply chain difficulties, the U.S. Department of Justice on Thursday said it was stepping up efforts to monitor for companies that "exploit supply chain disruptions to engage in collusive conduct."
 
The DOJ announcement comes a day after U.S. Secretary of Agriculture Tom Vilsack told state agriculture officials at the National Association of State Departments of Agriculture winter meeting in Arlington, Virginia, the DOJ should be investigating ag input price increases such as higher seed or chemical costs. (See https://www.dtnpf.com/agriculture/web/ag/news/business-inputs/article/2022/02/16/seeking-ceos-comments-ag-secretary)
 
Vilsack was asked what USDA was doing to address supply chain issues and he responded, "And then -- and I think it's fair to say I've been asked this question, and we are asking it of the Justice Department -- are all of these increases absolutely justified?" he said.
 
The DOJ said on Thursday it was undertaking a new initiative aimed at making sure companies aren't taking advantage of the supply chain snags by raising prices on consumers.
 
"Transportation constraints, disruptions to routine business operations and difficulty in obtaining raw materials have all led to increased costs of production and shipment, which in turn have resulted in higher prices for consumers," the DOJ said in a news release.
 
"Supply chain disruptions have been broad in scope, affecting a variety of industries ranging from agriculture to health care."
 
To view the complete report, click here.
 
And...
 
AG SEC'Y VILSACK ASKS DEPT OF JUSTICE TO INVESTIGATE HIGHER CROP INPUT PRICES
By the Pro Farmer editors
 
USDA Secretary Tom Vilsack wants the Department of Justice (DOJ) to ensure seed companies and other input suppliers are not using their market power and current conditions to raise prices unfairly. "It's important for us to ask questions about whether all of these increases, every penny of these increases, is justified based on disruptions, based on supply, based on the normal economics," Vilsack said during an appearance at the National Association of State Departments of Agriculture's (NASDA) 2022 Winter Policy Conference. He told the nation's state agriculture commissioners on Wednesday that if input companies cannot justify current pricing, "then shame on anybody who's trying to take advantage of this circumstance."
 
Vilsack acknowledged the volume of challenges weighing on the ag sector, mentioning supply chains, animal disease threats and rising input costs, but stressed his confidence in the "capacity of American agriculture" to overcome them. Vilsack said higher input costs are tightly linked to broader pandemic-driven supply chain woes, with heavy demand running up against scarce supplies.
 
A lot of these factors are things that the department of Agriculture, whether at the state level or at the federal level, is not in a position to provide much assistance," he said. However, he said USDA's other moves aimed at creating and expanding market opportunities for farmers and ranchers through climate-smart ag and new export markets can support higher commodity prices and help producers "withstand some of these shocking [input] prices that they're currently facing."
 
Vilsack's comments come as DOJ and the FBI today are scheduled to announce a new initiative to look at finding companies that are exploiting supply chain disruptions in the U.S. to make increased profits, violating U.S. antitrust laws. The U.S. has also formed a working group on supply chain collusion with countries like the U.K., Australia, New Zealand and Canada to share intelligence and root out global efforts on that front.
 
To view the complete report, click here.
 
Editor's Note: Current federal monetary policy and the Biden administration are virtually 100% responsible for inflation rates hovering at 10% or better today as well as a fair share of supply side problems. There is no acknowledgment of inflation's contribution to higher costs (for everything) or government policy for supply chain issues (blame the pandemic but not this administration's response to it). Naturally deflecting responsibility for higher crop input costs onto suppliers makes perfect sense; to someone.
 
Researchers discover when pollen comes of age - Finding has major implications for plant breeding process
University of Georgia News Release
 
It cakes our cars in yellow powder every spring and taunts allergy sufferers for months on end, but pollen is more than just plant sperm.
New research from the University of Georgia has determined when pollen comes of age and begins expressing its own genome, a major life cycle transition in plants.
 
Each grain of pollen is actually its own multicellular organism – with two to 40 cells, depending on the species. Pollen expresses its own genome and is genetically distinct from its parent plant. That means pollen grains from a single flower can have different traits and characteristics, similar to how you might be different from your siblings.
 
Pollen resembles bright green crystals on a maize silk under a fluorescence microscope. (Submitted photo)
 
When pollen grains compete to fertilize the egg, only those pollen grains with the most successful traits will survive to pass on their genetic information to the next generation. This fierce competition between pollen is a quality check on the genome in plants because harmful mutations are removed when the pollen grains with these mutations cannot compete.
 
Before the study, which landed the Jan. 28 cover of Science, scientists weren’t sure when pollen began to express its own genetic information.
 
“Since pollen expresses its own genome, natural selection can act directly on pollen. This makes pollen competition an important force shaping plant evolution,” said Brad Nelms, lead author of the study and an assistant professor of plant biology in the Franklin College of Arts and Sciences. “If we had better knowledge of the extent and timing of pollen selection, it would help us better predict how plant species adapt to changing environments. We might even be able to use pollen selection to speed up crop breeding, selecting for more heat-tolerant crops, for example.”
 
Pollen, shown here under a microscope, is actually its own multicellular organism, with two to 40 cells depending on its species. (Submitted photo)
 
The ‘hidden life’ of pollen
 
Pollen selection is key to successful breeding. But pollen development is incredibly vulnerable to heat stress.
 
Rising temperatures can cause irreversible damage to the plants themselves and can also alter how much pollen is produced by a given plant. In turn, that coupled with other heat-induced changes to a plant’s sexual reproductive cycle can ultimately lead to lower crop yields, a major concern for food security.
 
“For instance, all the starches that are made in grains are also made in pollen,” Nelms said. “The same pathways are there. So we’re figuring out ways where we can actually do loss of function genetics directly on pollen.”
 
The researchers sequenced RNA content from maize pollen cells for 26 days, beginning with the formation of spores in a process known as meiosis, and ending with fully formed pollen detaching from its parent plant.
 
“What a lot of people think about when we think of pollen is once we see a flower and you see the pollen about to be shed, but pollen development actually begins really early in the flower,” Nelms said. “In corn, for instance, I plant a seed in the ground, and five or six weeks later, the plant would come up to around my chest. You wouldn’t see any signs of flowering yet, but those organisms are already growing deep inside the plant. It’s this kind of complex hidden process that we hadn’t seen much before in plants.”
 
Virginia Walbot, from Stanford University, was a co-author on the paper.
 
Remember this? First new herbicide a.i. in decades?
 
EPA Proposes Registration of Trifludimoxazin, a New Herbicide Active Ingredient
For Release: December 11, 2020
The U.S. Environmental Protection Agency (EPA) is proposing to register pesticide products containing the new active ingredient trifludimoxazin, a vital additional tool in managing resistant weeds.
 
Trifludimoxazin is an herbicide intended for pre- and/or post-emergent control of broadleaf and grass weeds. It can be applied by aircraft on citrus fruits, pome fruits, cereal grain (except rice), tree nuts, peanuts, and foliage of legume vegetables. Non-agricultural use sites include tree plantations, industrial landscaping, native grass openings, and conifer and hardwood plantations.
EPA reviewed trifludimoxazin and determined there are no human health risk concerns.
 
EPA is proposing specific mitigations to address potential ecological risks, including label instructions to reduce spray drift by using a medium to ultra-coarse spray nozzle, and resistance management strategies to reduce the potential for herbicide resistance. The label also includes advisory language to prevent off-site movement to non-target areas due to runoff, along with application restrictions and recommendations on what types of soils and substrates to avoid.
 
EPA is accepting public comments on this proposal via docket EPA-HQ-OPP-2018-0762 at www.regulations.gov for 30 days.
 
Now this...
 
Facing a lawsuit and newly announced EPA registration policy, BASF has agreed to voluntarily cancel its registrations for the herbicide trifludimoxazin (brand name: Tirexor).
 
But it also plans to reapply under EPA's new guidelines. The agency said last month it will now incorporate endangered species impacts into registration reviews for new active ingredients.
 
Cancellation of the registrations will not "adversely affect the availability of the pesticide for use" on minor crops because BASF has never made, distributed or sold the products in the U.S., BASF Vice President, U.S. Crop Scott Kay said in a declaration filed in the U.S. Court of Appeals for the Ninth Circuit Wednesday.
 
Also Wednesday, the Center for Food Safety, Center for Biological Diversity, EPA and BASF asked the court to hold the environmental groups' challenge to the registration approval in abeyance. The official cancellation notice is in today's Federal Register.
 
The chemical "should never have been approved to begin with, but we are gratified BASF has recognized our case's merit, capitulated, and will remove its product from the market without further litigation," said George Kimbrell, CFS legal director and counsel in the case.
 
Editor's Note: New EPA registration guidelines? Moving the goalposts? Why does "no new herbicide active ingredients" sound an awful lot like "no new oil or gas pipelines?
 
Who Determines Ownership of Water Rights in Texas?
Texas A&M Texas Agriculture Law Blog
 
The Texas Supreme Court will hear oral arguments on March 24, 2022 in Pape Partners, Ltd. v. DRR Family Properties LP, a case posing the question of who determines ownership of water rights in Texas, the courts or the Texas Commission on Environmental Quality?
 
Photo via Pixabay
 
Background
 
In 2014, the Papes purchased farmland. As part of the purchase, sellers conveyed surface water rights to the Papes. The Certificates of Adjudication for the surface water rights was originally in 1986 as part of a judgment in a lawsuit under the Texas Water Rights Adjudication Act. The Papes contacted the TCEQ to record their purchase of water rights.
 
The TCEQ noted other potentially interested landowners that they might own an interest in the water rights, including an adjacent landowner, DRR. DRR responded by filing a change of ownership form, and the TCEQ determined that DRR owned a portion of the water rights. The TCEQ modified its records to reflect this ownership.
 
The Papes disagreed with the TCEQ determination and moved to reverse its decision, which was denied. The Papes did not make an administrative appeal of the decision, but instead, filed this lawsuit seeking a declaration that it owns all of the water rights in the property that it purchased. The Papes also made claims against DRR for trespass to try title, adverse possession, and to quiet title.
 
DRR moved to dismiss the lawsuit, claiming that the Papes failed to exhaust their administrative remedies and, as such, the court did not have jurisdiction to hear the case. The trial court granted the motion to dismiss. The Papes filed an appeal.
 
Court of Appeals Opinion
 
The sole issue on appeal is whether it is within the jurisdiction of the TCEQ or of the courts to determine ownership of water rights.  The Waco Court of Appeals held that it is the TCEQ that has exclusive jurisdiction to determine water rights and, thus, dismissed the case. [Read Opinion here.]
 
Generally speaking, the power to determine disputed property rights rests with the courts. Courts of general jurisdiction are presumed to have subject matter jurisdiction unless the Texas Constitution or another law gives that jurisdiction to another court, tribunal, or administrative agency. An administrative agency may only exercise powers expressly granted to them by law. This grant may either be expressly stated or there must be a “pervasive regulatory scheme” indicating intent to infer exclusive jurisdiction. If an agency has that jurisdiction, then a party is required to exhaust all administrative remedies prior to seeking juridical review of an agency’s determination.
 
Here, the Papes argue that the Texas Water Code does not grant exclusive jurisdiction to determine water right ownership to the TCEQ. The Water Code grants TCEQ “primary authority to establish surface water quality standards, which it implements, in part, in its permitting actions.” Thus, the court held, “although the statute does not expressly grant exclusive jurisdiction over water rights to the TCEQ, the regulatory scheme behind surface water permits is pervasive and indicative of the Legislature’s intent that jurisdiction over the adjudication of surface water permits is ceded to the TCEQ.”
 
The Papes also argue that allowing the TCEQ to have jurisdiction over water rights ownership disputes violates separation of powers. The separation of powers doctrine is violated when one branch of government is given a power more properly attached to another branch. The court found this was not the case here, as the Texas Constitution authorized the Legislature to give this authority to the TCEQ.
 
Because the court determined TCEQ had exclusive jurisdiction, then the Papes were required to follow the agency review process. It is undisputed that they failed to do so, thus, the court affirmed the dismissal of the case.
 
Dissent
 
Chief Justice Tom Gray wrote a dissenting opinion, in which he lays out why he believes it is the courts, not the TCEQ, that should have jurisdiction over this dispute. [Read dissent here.]
 
First, looking at the Texas Water Rights Adjudication Act, passed in 1967, he notes that the legislature used the phrase “water rights adjudication” as a “short-hand” reference to “the delegation to regulate the conservation of the natural resource of surface water by determining the amount of use, place of use, purpose of use, point of diversion, rate of diversion, and in the appropriate situation, included the acreage to be irrigated.” Thus, when the Legislature included “water rights adjudication” in granting authority to the TCEQ 18 years later, that is what it had in mind, rather than the authority to adjudicate title or ownership disputes related to water rights, as that has been traditionally left to the courts.
 
Second, Chief Justice Gray stated that it would be impractical for the TCEQ to have exclusive jurisdiction over all water rights and noted this would mean every will contest, contract, deed, and other dispute over a water right would have to be decided by the TCEQ, while every other ownership interest would have to be decided separately by the courts. He believes the TCEQ regulatory system is not designed to determine ownership, but merely to track recorded ownership.
 
He would reverse the trial court and remand the case for further proceedings to litigate the merits of the ownership dispute.
 
Texas Supreme Court
 
The Papes filed a Petition for Review with the Texas Supreme Court, which was granted. Oral argument has been set for March 24, 2022.
 
A number of amicus briefs have been filed in the Court in support of the Petition. Most interestingly, the TCEQ filed an amicus brief supporting the Papes, disclaiming any such jurisdiction to determine water rights ownership. Both the Texas & Southwestern Cattle Raisers Association and the Texas Water Conservation Alliance filed letters in support of the Papes’ argument.
 
 
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The articles, views, and opinions expressed in the Weekly Update do not necessarily reflect the policies of the Texas Seed Trade Association or the opinions of its members.
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