ACEP-ALE for Entities - FIC

We’ve detected that you are using an outdated browser.

Please use a new browser like Chrome, Firefox, Safari or Microsoft Edge to improve your experience.

We’ve detected that you are using an outdated browser.

ACEP-ALE for Entities

Welcome. Learn how to successfully participate in the Agricultural Land Easement component of the Agricultural Conservation Easement Program. Our fact sheets, videos, annotated checklists, and more will walk you through each phase of the process.
Learn About ACEP-ALE
  • Learn About ACEP-ALE
  • Prepare to Participate
  • Apply to ACEP-ALE
  • Prepare to Acquire
  • Steward the Easement
Sections
Jump to Section
1. Learn About Agricultural Conservation Easements
2. Explore How ACEP-ALE Works
3. Get to Know NRCS
Go to top
Collapse

Learn About ACEP-ALE

The Agricultural Conservation Easement Program – Agricultural Land Easement component (ACEP-ALE) is a voluntary federal conservation program implemented by the USDA Natural Resources Conservation Service (NRCS) that protects agricultural land from conversion to non-agricultural uses. ACEP-ALE provides matching funds to eligible entities to acquire conservation easements on farm and ranch land.

Learn About Agricultural Conservation Easements

A conservation easement is a deed restriction used to protect natural resources on land. An agricultural conservation easement makes land available for agricultural uses, which may keep land affordable and support land access and succession. A conservation easement may also provide potential tax benefits to landowners. Agricultural conservation easements limit what can be built on the property and where structures can be located, limit non-agricultural development, subdivision and other uses that are inconsistent with agriculture.

READ
  1. Agricultural Conservation Easements Fact Sheet

Explore How ACEP-ALE Works

The Agricultural Conservation Easement Program (ACEP) provides technical and financial assistance to protect farm and ranch lands and conserve grasslands and wetlands. Under the Agricultural Land Easement (ALE) component of ACEP, NRCS provides matching funds to eligible entities, state and local governments, non-governmental organizations, and Indian tribes to acquire agricultural conservation easements on working agricultural lands.

NRCS sets minimum criteria that all land, landowners, and entities must meet in order to qualify for program participation. They process and rank the applications which are submitted by entities. The number of applications submitted varies from state to state. Contacting your state NRCS program manager can give a sense of how competitive applications have been in the past.

Once the easement transaction has closed, the entity maintains responsibility for stewarding the land in perpetuity according to terms in the agreement. Additionally, NRCS maintains a right of enforcement throughout the life of the easement.

Consider your organization’s capacity to handle these responsibilities before deciding to participate. Review the following pages to learn about eligibility criteria, applying for ACEP-ALE participation, and holding an agricultural conservation easement.

READ
  1. ACEP-ALE Overview for Entities
  2. NRCS ACEP Fact Sheet

Get to Know NRCS

NRCS is a federal agency within the U.S. Department of Agriculture. NRCS works with farmers and landowners to help improve agricultural productivity and protect natural resources through conservation programs and technical assistance.

The agency has a state office in each state and local service centers in most counties throughout the U.S. Some local service centers serve more than one county. 

As you proceed through the ACEP-ALE application process, NRCS field staff in local service centers can help answer questions about using the Web Soil Survey and understanding the soils and land uses of potential easement land. This will be relevant when determining the land’s eligibility. Field staff can also assist with connecting your entity and the landowners you work with to the USDA Farm Service Agency (FSA) to complete forms required for eligibility.

NRCS field staff may administer several programs simultaneously, and while ACEP-ALE administration may not be their primary task, they are a good general resource for conservation programs and processes.

The ACEP-ALE program manager, typically located in the NRCS state office, can answer any program-related questions you may have. Each state has ranking criteria, application deadlines, and funding opportunities. Contacting your state program manager will help you understand how ACEP-ALE is administered in your state. Staff capacity may be limited in some states. Call the program manager to set up a time to ask specific ACEP-ALE questions.

WATCH
  1. An Introduction to USDA NRCS
  2. Programs and Services at NRCS
USE
  1. USDA Service Center Locator 
  2. NRCS State Office Websites
  3. NRCS ACEP-ALE State Program Manager Contact List
Sections
Jump to Section
1. Determine Your Eligibility
2. Screen Potential Projects
3. Choose a Transaction Type
4. Determine Your Landowner’s Eligibility
5. Review Land Eligibility Criteria
Go to top
Collapse

Prepare to Participate

Before taking steps to apply for ACEP-ALE funding, you will need to verify whether your entity meets the minimum eligibility criteria that are set by law, as well as the type of ACEP-ALE transaction.

Determine Your Eligibility

To determine whether your organization is eligible, refer to the list of minimum criteria below and use our checklist. If you still have questions about your eligibility, your state’s ACEP-ALE program manager can assist you and help determine what documentation is needed to establish eligibility.

To be eligible to engage in a BPS transaction, your organization must meet entity, land, and landowner eligibility criteria for standard ALE transactions and meet the additional criteria for BPS transactions.

If another organization is co-holding an easement with you or acting as a 3rd party right holder, they do not need to separately establish eligibility unless they are also applying separately as an eligible entity, or will be an interim easement holder in a post-closing BPS transaction.

Each of the following criteria must be satisfied:

  • Be an agency of a state or local government (can include a farmland protection board or land resource council established under state law), though this entity would not be eligible to undertake BPS transactions; an Indian Tribe; or a non-profit nongovernmental organization
  • Be organized for the purpose of land preservation (can include recreation, natural habitat, open space, farmland, forest land, and/or historically important land)
  • Have authority to purchase and hold agricultural conservation easements
  • Have an established agricultural land protection program that purchases conservation easements
  • Have demonstrated a commitment to the long-term conservation of agricultural lands
  • Have the capability to acquire, manage, and enforce easements
  • Have staff dedicated to stewardship and monitoring
  • Satisfy non-Federal share requirements

You will need an active entity registration in the System for Award Management (SAM) to receive federal funds. SAM registrations must be updated and renewed each year. As part of the registration process, you will receive a Unique Entity Identifier (UEI), a 12-digit number issued and maintained for free by SAM. The UEI replaces the DUNS number previously required for SAM registration. If your entity already is registered in SAM, a UEI would have been assigned automatically.

USE
  1. Entity Eligibility Checklist
  2. SAM.gov

Screen Potential Projects

Before you invest a lot of time:

  • Find out if the landowner is comfortable working with a federal agency. Landowners will need to disclose personal information to USDA in order to participate in the program.
  • Ensure the landowner is willing to live with a permanent restriction on their property.
  • Determine whether the parcel includes productive agricultural land. The majority of parcels qualify for the ALE program based on this category. The land must contain at least 50% prime, unique, statewide, or locally important agricultural soils. Generally, the higher the percentage of important soils, the better a project will rank. If your site does not meet the soils criteria, there are other options for qualifying, but be sure to check with state ranking criteria first.

If a project passes your initial screening, you can decide on a transaction type and spend more time confirming landowner and land eligibility.


Choose a Transaction Type

There are two types of ACEP-ALE transactions:

  • A standard ALE transaction occurs when the eligible entity has a written pending offer to purchase the agricultural land easement (ALE) on eligible land from an eligible landowner (or future landowner who has a current written purchase agreement for the parcel). This is the most widely used transaction.
  • A buy-protect-sell (BPS) transaction occurs when NRCS enters into an agreement with an eligible entity to provide cost-share assistance for the purchase of an ALE on eligible land that is owned or being purchased by the eligible entity on a transitional basis. The transaction’s purpose is to secure the long-term protection of the land and ensures timely transfer of the land ownership to a qualified farmer or rancher.
READ
  1. ACEP-ALE Buy-Protect-Sell Fact Sheet

Determine Your Landowner’s Eligibility

Confirm Ownership of Land

It is important to identify all landowners at the beginning of the process to avoid delays and complications later. You can take these steps to confirm the ownership of the parcel:

  • Review a copy of the property deed.
  • Request an initial title search to confirm that the deed provided by the landowner is the most recent and accurate and covers all portions of the proposed offered area.

For buy-protect-sell (BPS) transactions, the timing of the transfer of ownership determines who the landowner is for the purposes of ACEP-ALE participation. For a pre-closing transfer, the landowner is the qualified farmer or rancher, identified by the entity, who ultimately will own the land prior to or at the ALE closing. For a post-closing transfer, the landowner is the BPS-eligible entity or the interim landowner identified to help facilitate the land transfer, depending on who will be the landowner during the ALE closing. For more information, see the BPS fact sheet listed below.

Coordinate Completion of USDA Eligibility Forms

All individuals, legal entities, and entity members of record need to complete paperwork with USDA Farm Service Agency (FSA) to determine eligibility, including adjusted gross income (AGI) and conservation compliance. A Subsidiary Print is the resulting report that summarizes key eligibility information. Each landowner must independently qualify. You should oversee this process. Set up an appointment with FSA to ensure each landowner completes the required eligibility forms.

This documentation should be completed as soon as possible. You could initiate this process as early as the start of the new federal fiscal year (October 1). You do not need to wait for an announcement of ACEP-ALE application cycles to certify landowner eligibility. Once the landowners have filed the necessary documentation with FSA, it is suggested to contact FSA periodically to ensure it is being processed. You will need to obtain permission from the landowners to speak with FSA on their behalf.

To help assess whether a landowner is eligible to participate, use our Landowner Eligibility Checklist below.

READ
  1. FSA AGI Fact Sheet
  2. USDA Conservation Compliance Fact Sheet
  3. Example Landowner Subsidiary Print
  4. ACEP-ALE Buy-Protect-Sell Fact Sheet
USE
  1. Landowner Eligibility Checklist 
  2. FSA Payment Eligibility Page

Review Land Eligibility Criteria

After the initial screening, work with your landowner to confirm that the land meets all of the applicable land eligibility criteria:

  • Be privately owned or tribal agricultural land on a farm or ranch;
  • Fits into one of the four eligibility categories listed below when applying:
    • Contains at least 50% prime, unique, or other productive soil,
    • Contains historical or archaeological resources,
    • Protects grazing uses and related conservation values, or
    • Furthers a state or local government policy consistent with the purposes of ACEP. You will need to cite the relevant policy if you choose this option. Contact your state program manager to determine if this eligibility criteria is available in your state.
  • Be identified as cropland, pastureland, rangeland, grassland or other grazing land, and/or nonindustrial private forest land that contributes to the economic viability of the parcel or serves as a buffer from development; and
  • Be subject to a written pending offer from an eligible entity to purchase an agricultural land easement (standard ALE transaction), or be subject to a buy-protect-sell transaction in which the land is owned by or in the process of being purchased by the BPS-eligible entity on a transitional basis and subject to certain conditions necessitating transitional ownership.

The following two items are listed as eligibility criteria in the ACEP-ALE program manual. In practice, NRCS will not consider projects to be ineligible based on these factors. These factors are considered in ranking. Be prepared to provide evidence of these factors at the time of application to make your project more competitive.

  • Have access to markets, infrastructure, and other agricultural support services; and
  • Be experiencing development pressure.

In addition, there are a few factors that make land ineligible, including: encumbrances with similar protections as ALE, unacceptable exceptions to clear title, adverse on or offsite conditions, and more. To learn more about land eligibility criteria, use the below Land Eligibility Checklist.

Understand Ranking Criteria

Applications are ranked by NRCS. NRCS staff from your state will conduct onsite visits and rank eligible parcel applications. National criteria make up at least half of the total score; state criteria may account for up to half. The State Conservationist with input from the State Technical Committee, however, may decide to give more weight to the national ranking factors. The national criteria consider the proportion of important agricultural land and active agricultural uses; the extent to which the parcel’s surroundings support agriculture and indicate development pressure; and whether the land contains significant grasslands.

As a result, ranking criteria are unique to each state and are updated each fiscal year. Changes must occur at least 30 days prior to an announced application cutoff date and the criteria must be posted on the state NRCS web page. If you do not see your state’s ranking criteria posted, contact the state NRCS program manager.

Assess Parcel Configuration

Walk the property with the landowner and explore their personal and business goals. Discuss possible locations of exclusions for future building lots or commercial activity, or future farm enterprises. Take note of certain features of the property that could potentially impact ALE participation, such as access, infrastructure, abutting properties, and anything else that will help you and NRCS assess onsite and offsite conditions.

Now that you are thoroughly acquainted with the parcel, it is time to explore parcel configurations. As you consider possible easement area configurations, think about:

  • Land eligibility criteria
  • Ranking criteria
  • Landowner goals
  • Entity goals
  • ACEP-ALE minimum deed terms

Prepare a few different examples and walk through them with the landowner.

The configuration of the acres that are proposed for enrollment will impact the land’s eligibility and ranking. If the proposed easement boundaries are different than the property boundaries, the landowner may need to procure a survey. 

Discuss Easement Deed Terms

It is important to talk with your landowner about the ACEP-ALE minimum deed terms and your entity’s deed terms prior to applying for participation. ACEP-ALE minimum deed terms are mandatory. It is very difficult to modify or revoke an ACEP-ALE easement once it is on the land. Therefore, be sure that your organization and the landowner fully understand and agree to these terms prior to participating in this program. Thoroughly consider current and future farm and non-farm activities to provide maximum flexibility to future farmers, while establishing clear limits on activities that may adversely impact the purpose of the ALE. Pay particular attention to the following terms which will require decisions to be made with the landowner:

  • Impervious surfaces
  • Subdivision
  • Industrial or commercial uses
  • New construction
  • Mineral exploration and extraction
  • Mining activities for materials (e.g., sand, gravel, or shale) used to facilitate the agricultural operations
  • Applicable management plans

Be aware that ALE deeds must include provisions that protect the attributes for which a parcel was ranked and selected for funding by NRCS. As a result, if a parcel’s ranking includes, for example, the commitment to protect pastureland that contains special wildlife habitat, the deed terms will enforce that commitment.

READ
  1. ACEP-ALE Program Manual, Sections 528.33-34, 528.40-41, and 528.60-61
  2. ACEP-ALE Minimum Deed Terms with Commentary
  3. Designating Farmland of Local Importance in Massachusetts Fact Sheet
WATCH
  1. How to Use the Web Soil Survey
USE
  1. Land Eligibility Checklist
  2. Web Soil Survey
  3. NRCS State Office Websites
  4. NRCS ACEP-ALE State Program Manager Contact List
Sections
Jump to Section
1. Learn About Funding Availability for ACEP-ALE
2. Gather Supporting Documentation
3. Access Application Forms
4. Complete Your Application Forms
5. Prepare for Site Visit
Go to top
Collapse

Apply to ACEP-ALE

Learn About Funding Availability for ACEP-ALE

Each fiscal year, NRCS issues a national bulletin to provide guidance on ACEP-ALE implementation. It includes vital information for NRCS staff about application review and selection, submitting agreements, internal review, and suggests dates for the current year’s application process. The guidance may also update standard forms, agreements, and deed term provisions.

States cannot begin processing or funding new applications until this guidance is issued. The release date for the fiscal year guidance varies based on a number of factors, including whether there are new Farm Bill provisions or federal budgetary discussions. 

After the guidance is released, NRCS state offices post information about the new application cycle. States are required to set the application deadline at least 30 days after the issuance of guidance. You can find the web pages for your state office using the “List of NRCS State Offices” link below. If information is not available or out of date, contact the state program manager.

USE
  1. NRCS State Office Websites
  2. NRCS ACEP-ALE State Program Manager Contact List

Gather Supporting Documentation

NRCS makes preliminary determinations about eligibility and ranking based on the documentation you supply. For projects that appear eligible, they will gather additional information with an on-site visit. Use the below checklists as guides and suggestions for gathering the documentation that will be needed to apply for ACEP-ALE. Refer to these lists early, as they will give you an idea of what to expect in the application process.

USE
  1. Entity Eligibility Checklist
  2. Landowner Eligibility Checklist
  3. Land Eligibility Checklist 

Access Application Forms

ACEP-ALE applications are comprised of two separate forms to be completed by eligible entities – one to establish an Agreement (NRCS-CPA-41) and another to fund a Parcel Contract (NRCS-CPA-41A) associated with the Agreement. For a buy-protect-sell (BPS) parcel, an additional form NRCS-CPA-41A BPS Supplement is also required.

First, be sure you are using the latest forms, as older forms may still be available in various places online. The latest forms are available at eForms.gov. You can complete the forms online and submit the forms electronically by registering for a USDA Customer ID. Visit eForms.gov for more information. You may also download fillable forms using the “Browse Forms” feature and submit them directly to your state program manager. Downloadable copies of the forms may also be posted on your state’s NRCS webpage.

When browsing for a form, keep searches as simple as possible. If you know the number of the form, such as NRCS-CPA-41, it helps to enter only the number 41 into the “Form Number” field without using the above filters. Avoid using punctuation or additional words, as search results will be too narrow and the form you are looking for may not appear.

If you see an error message instructing you to install Adobe Reader and configure viewing, refer to the “eForms Browser Instructions” document below. Be aware that not all USDA forms allow you to save information you type into them. Refer to these instructions for more information.

USE
  1. USDA eForms Website
  2. ACEP-ALE Application Forms
  3. eForms Browser Instructions

Complete Your Application Forms

The first form to be submitted is referred to as the Entity Application (CPA-41), which can be submitted at any time, with or without the second form for individual parcels. The CPA-41 covers entity eligibility and identifies other partners that are expected to be involved in upcoming projects as co-holders or 3rd party right holders. Specific easement information is not captured by this form. If the Entity Application is approved, your organization enters into a program agreement with NRCS. This program agreement is in effect for 5 years.

A Parcel Sheet (CPA-41A) is required for each ACEP-ALE parcel. The CPA-41A gathers information about the proposed easement land and the funding requested. Multiple parcels can be associated with a program agreement for standard ALE transactions. For BPS transactions, only one associated parcel sheet is allowed per program agreement and an additional form CPA-41A BPS Supplement is also required. Parcel applications can be submitted simultaneously with an Entity Application or after you have a program agreement with NRCS. You should submit these forms together or within a short period of time in order to be considered for funding.

USE
  1. Instructions for CPA-41 and CPA-41A

Prepare for Site Visit

If preliminary review shows a project meets eligibility criteria, NRCS will work with you and the landowner to set up any site visits. This is needed to conduct due diligence by verifying the application materials and condition of the land and infrastructure. NRCS staff will complete the three below forms with information from an interview with the landowner and the site assessment. In addition, NRCS contracts with a private environmental firm to check records for any hazardous material spills or potential off-site sources of contamination that might impact the parcel. 

READ
  1. Hazardous Materials Field Inspection Checklist
  2. Hazardous Materials Landowner Interview
  3. Landowner Disclosure Worksheet
Sections
Jump to Section
1. Execute Program Agreement and Parcel Contracts
2. Develop your Deed
3. Procure an Appraisal
4. Secure Clear Title
5. Obtain Your Plans
6. Prepare a Baseline Document Report
7. Finalize Documents and Reaffirm Funding
8. Complete the Transaction
9. Promote the Project
Go to top
Collapse

Prepare to Acquire

Now that you submitted an ACEP-ALE application and have gone through initial review, what comes next? NRCS will notify your organization that your project was selected for funding in a given fiscal year. Your organization will then enter into a contract with NRCS and manage the acquisition process through closing. See below for key steps leading up to the ALE closing. We have outlined a suggested order, but timing the appraisals, surveys, title searches, and more may depend on your organization’s policies, management of the project by your state NRCS contact, and the particulars of the deal.

Each funded parcel must pass through NRCS’s internal review process at the state and national levels before the project can close and payments can be issued. NRCS refers to this process as Internal Controls. Most documents are due at least 90 days before the planned closing date. It is a good idea to complete these steps sooner so there is time to resolve any issues that come up in the review process.

Execute Program Agreement and Parcel Contracts

NRCS will notify your organization that your project was selected for funding in a given fiscal year. Based on the information in your application and parcel sheet, NRCS will prepare a Program Agreement and Parcel Cost-Share Contract (Parcel Contract). These documents will identify specific NRCS requirements, products, and timelines for acquisition activities.

Program Agreement

NRCS will prepare the Program Agreement for you to review and sign, and NRCS will sign it last. The Program Agreement expires five fiscal years after the fiscal year the agreement was executed. Once a Program Agreement is established, you will not need to submit another Entity Application (CPA-41) until after the Agreement expires. Applications for individual parcels can be funded at any time over the life of a Program Agreement. Program Agreements establish roles and responsibilities for the lead eligible entity and all potential partners who may co-hold an ALE or serve as a third-party right holder. The agreement can be amended to add parties but cannot be amended to remove eligible entities. NRCS will provide additional exhibits, which are listed on the last page of the agreement. You may need to submit additional exhibits, like rules for parcel substitution, a minimum deed terms addendum, or NHQ-approved deed template.

Parcel Contract

NRCS will prepare the Parcel Contract for you to review and sign (Form NRCS-CPA-1265). NRCS will execute this contract last. This is when the clock starts for acquiring an easement. In general, ALEs must close within three years as specified on Parcel Contract page 1. Two 12-month extensions may be approved. No Parcel Contract may be extended beyond March 31 of the fifth fiscal year following the original fiscal year of the Parcel Contract execution.

The Parcel Contract includes a series of forms. It identifies the lead eligible entity, any other eligible entities, and the amounts to be paid to each for the acquisition of an ALE. Form NRCS-CPA-1265-Appendix identifies additional terms and conditions for the contract. Form NRCS-CPA-1266 Schedule of Acquisition for Easements identifies how the deed terms and HEL plan components (if applicable) will be incorporated and verifies easement costs, entity roles, and landowner information. If you need to make changes to the Parcel Contract, including extensions, changes in parcel boundary, landowners, interest holders, etc. use form NRCS-CPA-1267 Modification of the Schedule of Acquisition for Easements, though modifications must be approved by NRCS. NRCS will provide additional documents (NRCS-CPA-230E, -230F, and -1268) that you will use later in the acquisition process.

READ
  1. Program Agreement

Parcel Contract Forms

  1. Form NRCS-CPA-1265, ACEP-ALE Parcel Cost-Share Contract
  2. Form NRCS-CPA-1265-Appendix, Appendix to the ACEP-ALE Parcel Cost-Share Contract
  3. Form NRCS-CPA-1266, Schedule of Acquisition for Easements
  4. Form NRCS-CPA-1267, Modification of the Schedule of Acquisition for Easements

Develop your Deed

You will work with the landowner and NRCS to finalize the deed. Some important deed terms require decisions be made in consultation with the landowner in advance of closing the easement. Consider current and future farm and non-farm activities to provide maximum flexibility to future farmers, while establishing clear limits on activities that may adversely impact the purpose of the ALE.

  • Limit on impervious surfaces restricts surfaces covered by asphalt, concrete, or roofs, not including unpaved roads, to 2% of the easement area. You can request a waiver from NRCS for up to 10% impervious surface. Contact your state program manager for more information about this process. Below is a sample worksheet for waivers used by NRCS to determine the allowable impervious surface percentage. In some states, entities have worked with NRCS to develop other criteria and/or set a lower maximum impervious surface limit for waivers. If a waiver is granted, you will need to insert the allowed impervious surface limit for this project in the ALE deed. MDT Section I, Paragraph (1).
  • Subdivision—future division of the property—is significantly limited with an ALE. If you allow future subdivision, identify the maximum number of separate parcels and divisions in the ALE deed and whether you will seek NRCS approval prior to the easement or after. At least 90 days before the closing, provide NRCS a map of the proposed subdivision and impervious surface allocation of each resulting parcel. Each new parcel must meet the ACEP-ALE land eligibility requirements. If approved, the subdivision plan will be an exhibit to be recorded with the deed. If you choose to approve subdivision after the easement, submit a request to NRCS for approval and ensure all applicable deed requirements are met. MDT Section I, Paragraph (2)(A).
  • Industrial or commercial uses related to agricultural production and consistent with the purpose of the ALE are allowed. List the specific agricultural or forestry activities that will be allowed in the ALE. MDT Section I, Paragraph (2)(B).
  • Construction on the protected property must be located in building envelopes, which are places where existing and future structures on the farm or ranch are located. Describe the envelopes, including the number, total acres, any impervious surface areas, and any other requirements in the deed terms. Building envelopes can be fixed or floating. The location and boundaries of fixed envelopes are identified prior to closing. Floating envelopes are sited after the easement has closed by amending the deed exhibit and must be approved by the NRCS State Conservationist. If there are no existing structures on the easement area and the construction of new structures on the easement area will be prohibited, provide NRCS with a statement that the easement will have no building envelope and address this prohibition in the deed. You will need to provide a map of the location and boundaries of the building envelopes to NRCS at least 90 days before the closing. Attach the map with boundaries and locations of existing and future building envelopes as an exhibit to be recorded with the deed. MDT Section I, Paragraph (2)(C).
  • Surface and subsurface mineral exploration and extraction are generally prohibited after the easement. However, you are provided the option of either prohibiting mineral development entirely or limiting it to subsurface mineral development with numerous requirements. MDT Section I, Paragraph 2(F).
  • Limited mining activities for materials (e.g., sand, gravel, or shale) used for agricultural operations on the protected property may be allowed and would be identified in an Exhibit or approved prior to extraction by you, though a not to exceed acreage must be identified in the ALE deed. MDT Section I, Paragraph 2(F).
  • Applicable management plans, including conservation plans required for highly erodible cropland and agricultural land easement plans, agreed upon by you and landowner are identified in the ALE deed. You must ensure the landowner follows the plans and update them in the event the agricultural uses or ownership of the protected property change. MDT Section I, Paragraph (3)(A)-(B) and (4).

There are additional issues to consider including, but not limited to, water rights, renewable energy, and telecommunications. Review the Minimum Deed Terms and NRCS Title Exception Guide below and discuss them with the landowner before the easement closing. Once the ALE is placed on the parcel, conveying interests like rights-of-way to others will need to be evaluated and approved by your partner and, in some cases, NRCS.

Deed Approval Process

The level of NRCS review and type of approval required for individual easement deeds depends on how your organization chose to include the ALE minimum deed terms in the Parcel Contract. If you change your approach to incorporating MDTs after the Parcel Contract is signed, you can request a modification using form NRCS-CPA-1267. Approval will depend on whether the project received ranking points based on how MDTs are incorporated.

You must ensure the conservation easement language is compatible with the ACEP-ALE Minimum Deed Terms (MDT). Generally, you can propose more restrictive terms than the MDT, but these terms must still be consistent with the purposes of ACEP-ALE and will be reviewed by NRCS. If you are incorporating the MDT into your easement, you could highlight each provision to help the NRCS reviewer. Note in particular where your organization’s terms are more restrictive than the MDT. Be sure to submit the draft deed to NRCS for approval at least 90 days before the planned closing date so there is time to address any identified issues. The state easement staff will conduct a deed review and then submit to the Easement Programs Division (EPD) for approval, if required.

The final version of the ALE deed needs to be considered in the appraisal. If you are using a NRCS-approved template deed, this deed should be provided to the appraiser.

Confirm Legal Description

The description of the parcel included in the ALE deed must match the description in the underlying property deed and the title commitment and meet the state’s survey standards. It should identify all easements, rights of way, encroachments, etc. You will only need to obtain a new survey and legal description in certain situations. For instance, if the legal description of the parcel covered by the ALE does not match the current recorded property description, or if the portion of the parcel covered by the ALE is smaller than the total parcel size. The ACEP Program Manual section 528.60(B) lists some other situations that may require a new survey. Hold off on ordering a new survey, if required, until the appraisal and title review are completed to avoid unnecessary costs. You may want to share a draft survey to NRCS for review before finalizing it for closing. Submit the legal description and, if applicable, the new survey to NRCS at least 90 days before the planned closing date.

READ
  1. ACEP-ALE Options for Integrating Minimum Deed Terms
  2. ACEP-ALE Minimum Deed Terms with Commentary
  3. ACEP-ALE Worksheet for 2-Percent Impervious Surface Waiver Determination
  4. ACEP Program Manual sections 528.61, 528.60 B

Procure an Appraisal

Your organization will need to obtain a determination of the fair market value of the ALE. The appraisal provides the market value of the property before the easement is placed on the property and the market value of the property after the easement is placed on the property. The difference is the value of the easement.

Appraisals must be conducted by a certified general appraiser using any of the following:

  • Uniform Standards of Professional Appraisals Practices (USPAP) or the Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA or “Yellow Book”)
  • Area-wide market analysis (with NRCS approval)
  • Another method approved by NRCS in writing before signing a Parcel Contract or modification to a Parcel Contract.

You will need to provide the appraiser with the NRCS Appraisal Specifications and easement deed. It is a good idea to share any title review findings that are available at this stage. If you need an appraisal before you finalize the deed (e.g. to offer an accurate easement value to the landowner or for state ranking points), you can provide the draft to the appraiser especially if you plan to attach the MDTs or use an approved template deed. However, the final appraised value must be based on the final deed terms. Changes to the draft deed may require a written opinion by the appraiser to confirm the value is not impacted. If the value is impacted, a supplemental appraisal is required. The landowner cannot approve or disapprove of the appraiser selected to prepare the appraisal report and the landowner may not be listed as the client.

The appraised value must be determined:

  • Within 6 months before or after the date the Parcel Contract is executed or modified; or
  • Within 12 months before the closing date of the ALE.

You should review the appraisal for accuracy and must provide the appraisal report at least 90 days before the closing so that NRCS may conduct a technical review. If the appraisal is not approved, issues must be corrected according to NRCS standards. Communication between the appraiser and the technical reviewer may be necessary. If the easement value exceeds $1 million, the NRCS national appraiser reviews both the appraisal and the technical review of the appraisal.

READ
  1. NRCS Manual – Easement Common Provisions section 527-Subpart E, Appraisal and Technical Review
  2. Specifications and Scope of Work for ACEP-ALE Appraisals
  3. ACEP Program Manual section 528.53

Secure Clear Title

Title Review and Commitment

You need to obtain a legal title review and report along with all underlying documents. The title review should be done prior to major investments of time, resources, and money in case there are clouds on the title that cannot be reconciled and are not compatible with the program. This title report will identify any outstanding interests, exceptions, or issues. Typical issues include mortgages, life estates, judgments, leases, and mineral interests. You and the landowner’s attorney are responsible for reconciling any title issues.

Mortgages must be subordinated or removed. NRCS may allow landowners to use their anticipated ALE closing proceeds to pay off the mortgage upon request, but the title must be cleared at closing. Any leases or easements that include a right of first refusal or are incompatible with the purposes of the conservation easement or agricultural use must be removed or subordinated. Agricultural leases must be subordinated. Life estates, judgments, mechanics liens, and tax liens must be removed. Discuss any mineral interests, rights, or leases with your state NRCS program manager. See the ACEP Title Exception Guide below for additional details.

At this stage, you and the landowner’s attorney are working toward removing or subordinating other interests as required. Any exceptions to the requirement to remove or subordinate outstanding or reserved interests must be consistent with the Program Agreement and approved and documented by NRCS. To make this process smoother, it is helpful for you to explain in writing why each title exception will not impact the ALE and submit these explanations to NRCS. You may need guidance from your attorney. NRCS will determine whether these exceptions are acceptable and will take into consideration your review and findings.

At least 90 days before closing, provide NRCS with a copy of a title commitment—a promise from the title company to provide title insurance for at least the full amount of the ALE purchase price. The title commitment will include a copy of documents to support each title exception, a summary of title review findings, and any other requested documentation related to title.

Title Insurance

Secure proper title insurance using an American Land Title Association (ALTA) Owner’s Policy with your organization listed as the insured. The policy issued must be for at least the full amount of the ALE purchase price. Immediately following the closing, ensure that the closing agent issues a policy of title insurance on the ALTA Owner’s Policy. Review this policy closely to be sure the insurance company has not added unapproved exceptions. The time and date of the recording of the agricultural land easement deed must also be identified in the policy.

READ
  1. ACEP Program Manual section 528.62
USE
  1. USDA Subordination Agreement and Limited Lien Waiver (AD-1158)
  2. ACEP Title Exception Guide

Obtain Your Plans

In general, landowners are not required to have land management plans to participate in ACEP-ALE. This is a change from the 2014 Farm Bill which required the development of an Agricultural Land Easement Plan (ALEP) for all projects. Now, there are only three circumstances that require plan development and implementation.

Any portion of the parcel containing highly erodible cropland must be managed in accordance with a HEL conservation plan. The plan will be developed by NRCS or a NRCS-certified planner. You can coordinate and participate in any NRCS field visits with the landowner. The HEL conservation plan must be submitted to NRCS prior to closing. If there are changes to the agricultural operations on the parcel or ownership of the parcel, the HEL conservation plan must be updated.

Resources that served as the basis for land eligibility or ranking points, such as forests, grasslands, or cultural/archeological sites, may require a separate management plan. This would have been identified during the application and ranking process.

A few states award ranking points for an Agricultural Land Easement Plan (ALEP), which is an optional comprehensive plan that can include different component parts like a grassland management plan, forest land management plan, and/or a schedule for implementing conservation practices. If it is used for ranking, it must be referenced in the ALE deed and your organization is responsible for ensuring compliance with the plan in perpetuity.

READ
  1. Sample ALE Plan
  2. HEL/WC Compliance Fact Sheet
  3. ACEP Program Manual section 528.63 C

Prepare a Baseline Document Report

Your organization (or a contractor) will prepare a Baseline Document Report that documents the baseline conditions of the parcel at or near the time of closing. Trash, debris, encroachments, and other issues should be adequately addressed prior to the easement so as not to be part of the baseline condition. You must develop the report according to the requirements in your Program Agreement using the below Baseline Documentation Report List of Items as a guide. It will be referenced for monitoring and stewardship activities. Provide NRCS a draft report at least 90 days before the planned closing date of the ALE. The baseline documentation report must be appended to the agricultural land easement deed or incorporated by reference.

READ
  1. Baseline Document Report List of Items
  2. ACEP Program Manual section 528.60 C

Finalize Documents and Reaffirm Funding

Submit Final Documents for NRCS Review

In order to close, you must have submitted and received NRCS approval for final versions of the items outlined above, along with at least a draft NRCS-CPA-230 documenting matching funds (described below). Be sure to refer to your Program Agreement, Parcel Contract, and NRCS program manager to confirm that you have met program requirements. These items are required at least 90 days before the planned closing date, but it is highly recommended that your organization provide these deliverables much sooner so there is time to resolve any issues identified in the internal controls review process, as some issues may take considerable time to resolve and delay closing. Some state ACEP-ALE program managers are open to receiving these items as soon as you complete them in advance of the deadline to make review more efficient. Ensure NRCS is getting the final version of a document for its review as changes made after require additional reviews and slow down the process. Re-reviews are required when there are any changes to the project that would negate a portion of the review, such as landowner changes, changes to the offered acres, the footprint of the easement, easement value, appraisal expiration, and more. NRCS documents its approval of the required documents by completing and signing the “NRCS Approval Letter to Proceed with the ACEP-ALE Acquisition” and provides a copy to you.

Confirm Matching Funds

Use the applicable version of form NRCS-CPA-230 to identify and confirm sources of the non-Federal share, such as your organization’s cash contributions and landowner donations and eligible procured costs as applicable. You will need to provide documentation to support any expenses being used as part of the non-Federal share. If you are seeking an advance payment, submit the form signed by you and the landowner along with the payment request package (see below) at least 60 days prior to the planned closing date. If you are seeking payment in the form of a reimbursement, submit the signed form at least 30 days prior to the planned closing date.

Submit a Payment Request Package

You will supply documentation to help NRCS complete form NRCS-CPA-1268, Conservation Activity Approval and Payment Application for Acquisition of Easements, which is used to document and process the payment. The form confirms that required documents have been submitted, lists participating entities and amounts owed to each, and details payment distributions and assignments. You will be required to submit supporting documentation which includes many of the deliverables listed above.

You will use this form to request either an advance payment or reimbursement. To request advance payment, you must submit a payment request package at least 60 days before the closing, unless the Parcel Contract provides a different deadline. For advance payments, you must assign the payment of the Federal share to the closing agent using the “NRCS Closing Agent Requirements” form and supply additional documentation. Advance payments will not be made earlier than 30 calendar days before the closing date, and only after NRCS has approved all required documentation. NRCS will make an advance payment of the Federal share to the closing agent by Electronic Funds Transfer (EFT) to hold in a fully insured escrow account. You must provide NRCS with a receipt of the deposit. If the easement cannot be closed within 30 calendar days, the closing agent must return the funds (and any accrued interest) to NRCS.

For payments in the form of a reimbursement, it is good practice to submit the payment request package within 30 days after closing. You may receive the funds directly or may assign the payment after the ALE has been recorded and the landowners have been paid.

READ 
  1. ACEP Program Manual sections 528.80, 528.81 D, 528.82
  2. National Instruction 300-306 – ACEP-ALE Program Agreements and Parcel Contracts
  3. NRCS Approval Letter to Proceed with the ACEP-ALE Acquisition
  4. NRCS Closing Agent Requirements
  5. ALTA Closing Protection Letter Example
USE
  1. Form NRCS-CPA-230 (multiple versions), “Statement to Confirm Matching Funds”
  2. Form NRCS-CPA-1268, “Conservation Activity Approval and Payment Application for Acquisition of Easements”

Complete the Transaction

Prepare to Close

You can proceed to closing once you have received:

  • A signed Form NRCS-CPA-230, “Statement to Confirm Matching Funds” from NRCS,
  • A “NRCS Approval to Proceed with ALE Acquisition” letter showing NRCS has completed its reviews, and
  • For advance payments, notice from the closing agent that funds have been received.

Your closing agent must certify via the below Closing Protection Letter that they have insurance covering the full amount of the federal investment in the transaction. The closing agent must be licensed to engage in title insurance business in the state and follow the best practices for real estate transactions in your state, having up-to-date knowledge of the requirements of state law in connection with closing real estate transactions and title clearance.

Immediately prior to closing, the closing agent examines the real estate records covering the time from the effective date of the title commitment to the closing to determine that no new encumbrances have been recorded, nor any adverse change in title that might result in a new title exception on the policy.

Your closing agent may coordinate the execution of key documents, such as the ALE deed, Trustee’s Certificate, subordination agreements, releases, and other documents. At closing, the agent disburses the proceeds to the landowner, minus any costs of obtaining and recording the deed and curative documents, and prepares a closing or settlement statement, if applicable.

The closing agent must record or file the agricultural land easement deed in the office where local land records are officially recorded and stored in that state (e.g., county registrar of land records, county or town clerk land records office, etc.) within 5 business days of the closing date.

Post-Closing

Immediately following closing, the closing agent will issue a policy of ALTA title insurance. Title exceptions cannot be added to this policy after closing. Review this policy to ensure it matches the title exceptions that were approved by NRCS prior to closing.

The closing agent is also responsible for delivering all the following to you:

  • A statement covering the agreed upon closing costs
  • Title insurance policy that lists date and time of the deed recording
  • Executed settlement statement
  • Recorder’s certified copies of the agricultural land easement deed and subordination agreements and curative documents, if applicable
  • Record of disbursement of funds to the landowner
  • IRS Form 1099-MISC reporting information for landowners, for the full easement compensation amount, as identified in the conservation easement deed. You may prepare 1099-MISC for reimbursement payments but the closing agent must prepare it for advance payments.

Provide NRCS with a copy of the recorded agricultural land easement deed, all exhibits and curative documents, including subordination, the final policy of title insurance, and the final settlement statement. Once NRCS receives these documents, as long as nothing has changed from the pre-closing review, it can reimburse the federal share of the payment (if not paid in advance at closing) and close the parcel contract.

READ
  1. NRCS Closing Agent Requirements
  2. ALTA Closing Protection Letter Example
  3. ACEP Program Manual section 528.82 F

Promote the Project

Once the project is complete, remember to acknowledge key stakeholders and highlight project outcomes. This outreach can help raise public awareness about the importance of farmland and ranchland protection and build public support for your organization or program. By acknowledging key funding sources like ACEP-ALE, you can help demonstrate the need for these programs to policymakers.

Use the below Success Story Template to create a profile about the project. Start with the landowners to ensure you are respecting their privacy. If they are willing to share information about the project, ask them to express why they wanted to protect their land and what goals the project helps them achieve. It is useful for farmers, ranchers, and other agricultural landowners to hear about participation from their peers. If not, there are creative ways to talk about project outcomes without identifying the landowners.

USE
  1. NRCS Success Story Template
Sections
Jump to Section
1. More information coming soon!
Go to top
Collapse

Steward the Easement

More information coming soon!

New Guidance from USDA NRCS

NRCS periodically releases national instructions and bulletins to clarify program implementation. Consult with your state ACEP-ALE program manager for more information.

This collection is intended for informational purposes. Eligible entities should consult with their state’s ACEP-ALE program contact for confirmation of state-specific program and application requirements.

Visit American Farmland Trust

Get engaged and receive the information you need right in your inbox.