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 3^rd 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; a Native nation; 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.

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
5. Guide to ACEP-ALE for Heirs’ Property Landowners

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 Native nation-owned 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

WATCH

1. How to Use the Web Soil Survey
2. ACEP-ALE Land Eligibility: Projects that Further a State or Local Policy

USE

1. Land Eligibility Checklist
2. Web Soil Survey
3. NRCS State Office Websites
4. NRCS ACEP-ALE State Program Manager Contact List

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 3^rd 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. ACEP-ALE Application Checklist
2. 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

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. ACEP-ALE Program Agreement and Parcel Contract

WATCH

1. ACEP-ALE Program Agreement Optional Exhibit #4

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 no earlier than 12 months before the Parcel Contract is executed or the date the Parcel Contract is modified to identify a substitute parcel and prior to 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. As of May 2023, if the easement value exceeds $3 million, the NRCS national appraiser reviews both the appraisal and the technical review of the appraisal.

READ

1. Appraisal Best Practices When Partnering with NRCS
2. Statement of Work for ACEP-ALE Appraisals
3. NRCS Easement Common Provisions Manual – Section 527, Subpart E, “Appraisal and Technical Review”
4. ACEP Program Manual section 528.53

WATCH

1. ACEP-ALE Appraisal Review Process Webinar

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
2. Guide to ACEP-ALE for Heirs’ Property Landowners

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

Monitor Each Year

Your agreement with NRCS and the ALE deed terms (or the deed terms under the Farm and Ranch Lands Protection Program, the predecessor to ACEP-ALE) require you to monitor the easement every year. You will determine if the provisions of the conservation easement deed are being met and submit a monitoring report to NRCS. You can complete easement monitoring during an onsite visit or remotely by interviewing the landowner and using remote sensing. Onsite monitoring provides a more complete picture of what is happening on a protected property. Monitoring is not required in the fiscal year the easement closed because the due diligence and acquisition activities establish the baseline easement condition. NRCS staff enter information from your annual monitoring report into the appropriate Easement Business Tools—internal systems and databases used to facilitate and track easement administration. NRCS will document any noncompliance or needed action items and follow-up with you in accordance with applicable program policy.

The following steps will help ensure you adequately monitor an ALE or FRPP easement:

1. Review Documentation. Familiarize yourself with the site conditions and conservation easement deed requirements. This will help you detect changes on the property and identify potential issues. Review the conservation easement deed, baseline documentation report (BDR), legal description, previous monitoring reports, applicable conservation plans, any easement violation reports or violation remediation plans (if applicable), and any other relevant documents.
2. Verify Ownership. Confirm or update ownership information to support ongoing stewardship. You can verify ownership during an onsite visit by asking the landowner about any changes. You also can check ownership by phone, email, mail, or by searching public records, such as the local tax assessor’s website or land records office. NRCS may independently verify ownership using similar methods.
3. Compare Current Conditions to BDR and Document Changes. Note new activities, changes in land use, or new structures or clearing activity that might be restricted by the conservation easement deed to detect potential violations to investigate further. Compare current property conditions to the conditions in the BDR and any BDR updates. Review the most recent, high-resolution aerial imagery of the property. Some conditions may only be observed onsite. If there is a conservation plan or ALE plan you should ensure any required activities or practices are being conducted in accordance with the plan and make notes for any updates needed to address activities and changes.

Your monitoring report should specifically address the following items:

• Whether the terms and conditions of the conservation easement deed are being met (e.g., unauthorized subdivisions, new or expanded structures, utilities, encroachments, dumping, or other unauthorized uses);
• Whether there are changes in the amount or location of impervious surfaces (include an updated impervious surface calculation and map);
• Whether there is evidence of a spill or release of hazardous substances, petroleum products, or other potential environmental hazards; and
• Whether required components of a conservation plan, ALE plan and/or management plan are being followed.

Document significant changes and any potential or confirmed unauthorized uses in your annual monitoring report. Potential violations are unconfirmed issues that need additional investigation through an onsite visit or review with entity counsel or leadership. Although unconfirmed, these should also be documented and reported to NRCS state easement staff.

While your agreement only requires annual reporting, it is recommended that you provide the written annual monitoring report to NRCS as soon as monitoring is completed, but at a minimum, within 12 months of the last monitoring report to assist NRCS in meeting fiscal year reporting requirements. 

NRCS Monitoring

NRCS is responsible for monitoring 1) Highly Erodible Land Compliance (HELC) conservation plans and 2) Farm and Ranch Lands Protection Program (FRPP) easements enrolled between 2006 and 2008. If NRCS discovers a potential violation of the HEL Plan, or if you contact them about a potential violation of the HEL plan, they will coordinate directly with the landowner to resolve the issue and keep you updated. You can invite state NRCS staff to join you for on-site monitoring visits, especially if your staff has questions about HEL compliance. In addition, by statute, NRCS must monitor a small subset of FRPP easements closed between 2006 and 2008. These are considered stewardship lands where the United States is a grantee. You could coordinate with NRCS to monitor these easements. You are still responsible for submitting an annual report on these easements even if NRCS has performed its own monitoring. NRCS can utilize your monitoring report four out of five years to meet its monitoring requirement. Consult with your NRCS state easement program manager if you have questions related to easements closed between 2006 and 2008. Monitoring policies for other FRPP easements match ACEP-ALE requirements.

NRCS staff at multiple levels of the agency may also conduct quality assurance reviews of closed easements. These reviews may include verifying ownership, reviewing records, and aerial imagery. NRCS state staff is also responsible for reviewing conservation practices the landowner agreed to implement under the terms of other federal conservation programs, including the Environmental Quality Incentives Program.

READ

1. ACEP Program Manual, Subpart J “ACEP-ALE Easement Records, Monitoring, Enforcement”
2. NRCS Easement Common Provisions Manual – Section 527, Subpart P, “Monitoring”

WATCH

1. ACEP-ALE Stewardship Webinar

Address Violations and Coordinate Enforcement

Your organization or agency is primarily responsible for enforcing the terms and conditions of the conservation easement deed.  In addition to your organization or agency’s policies and processes for resolving violations, NRCS has established minimum requirements for addressing confirmed violations.

NRCS defines ACEP-ALE and FRPP violations as cases in which:

• The land is converted or developed to nonagricultural uses that are not consistent with the purposes and provisions of the conservation easement deed or, for grassland enrollments, the land is converted or developed to non-grassland uses that are not consistent with the deed.
• Damage or destruction occurs to the resources identified for protection in the conservation easement deed, including, but not limited to, highly erodible land, prime farmland, grasslands of special environmental significance, or historical or archaeological resources.
• Any terms and conditions of the conservation easement deed are not met.
• Any required elements of an ALE plan are violated, including, but not limited to, the HEL conservation plan.

Procedures for Resolving Violations

If you identify a violation, it is your responsibility to notify key stakeholders including the landowner, the violator (if different than the landowner), other easement co-holders, and NRCS and it is your responsibility to ensure the violation is resolved in a timely manner. If NRCS identifies a violation or potential violation first, the State Conservationist will provide written notice to you.

Any correction or agreement you make to resolve a violation must comply with the conservation easement deed. Before proceeding with a correction or resolution, consult with NRCS if you are unclear whether the proposed resolution would conflict with the conservation easement deed. For example, if the landowner violates a restriction in the conservation easement deed by cropping in a riparian area that was restricted from agriculture, you cannot resolve the violation by amending the recorded boundary of the riparian exclusion zone to allow the cropping to continue. Cropping must cease and the impacted land must be restored to its pre-violation condition. Document the onsite conditions that are out of compliance, the steps to correct the violation, and proof of resolution. Be sure to share this documentation with NRCS.

If you fail to act to enforce or if your resolution conflicts with the conservation easement deed, then NRCS may step in and exercise the United States’ right to enforce. This may jeopardize your ability to participate in future programs and you and the landowner could be responsible for any costs associated with NRCS’ enforcement activity.

Procedures for HEL Violations

NRCS will provide official notification of the HEL conservation plan violation to you only after the landowner has exhausted all appeal rights. NRCS is responsible for enforcement of HEL plans in accordance with the procedures outlined in Title 180 National Food Security Act Manual (NFSAM).

Understand the U.S. Rights of Inspection and Enforcement

NRCS may exercise the right of inspection if your annual monitoring report is insufficient, your monitoring report is not provided annually, or if NRCS has a reasonable belief or evidence of an unaddressed violation.

NRCS will coordinate onsite inspections with you and the landowner including providing advance notice and a reasonable opportunity to participate in the inspection. However, if NRCS believes action is necessary to prevent, terminate, or mitigate a potential or unaddressed violation, they will enter the property and notify you and the landowner as soon as possible.

NRCS may exercise the United States’ rights to enforce the terms of the conservation easement deed if you fail to enforce them, the landowner does not correct a violation, or a violation resolution would conflict with the terms of the deed. In the event the right of enforcement is exercised:

• NRCS must provide written notice to you within a 180-day period to cure unless it determines the conservation values are imminently threatened. If you fail to resolve the violation within that timeframe, NRCS takes the action specified under the notice.
• NRCS will provide you and the landowner advance notice and a chance to participate in an inspection if they are exercising their right of entry unless the agency deems immediate access is necessary to prevent or stop harm to the resources protected by the ACEP-ALE or FRPP easement. In that event, the agency will provide notice to you and the landowner at the earliest opportunity.
• The United States may recover administrative and legal costs associated with enforcement from you and the landowner and recover remediation expenses, such as the cost of materials, from the landowner. NRCS, however, will work with you to resolve violations. In general, cost recovery is pursued only as a last resort.
• Legal action may include civil action to prevent further easement violations and to collect damages; debt collection to collect expenses incurred in enforcement; and other remedies depending upon the nature of the violation. In rare circumstances, the United States may pursue criminal prosecution of the person who violates the easement or federal law or regulations.

READ

1. ACEP Program Manual, Subpart J “ACEP-ALE Easement Records, Monitoring, Enforcement”

Learn About Allowed Actions and Approval Requirements

Agricultural activities consistent with the purposes of the conservation easement deed are allowed by right and do not require prior approval. These include agricultural production activities (e.g., conservation tillage, cover crops, conservation crop rotation); maintenance of existing roads with same materials and same width; constructing fences necessary to support a grazing operation; or forest management (in accordance with a plan if applicable). Other activities require prior approval by you or by you and NRCS to protect agricultural resources and conserve grasslands. NRCS approval is necessary when a request will result in a change to the conservation easement deed (including attachments and exhibits), and as otherwise specified in the deed.

Be sure to review the conservation easement deed for the specific property before authorizing any activity. Each conservation easement deed is different. The Minimum Deed Terms for ACEP-ALE and its predecessor programs have changed over time and your organization may have included different or additional restrictions or approval requirements. Consult with NRCS if you are unclear whether NRCS approval is needed. Lastly, keep in mind that proposed activities are still subject to state and local laws.

Listed below are selected ACEP-ALE Minimum Deed Terms with approval requirements for each:

• In order to subdivide a parcel, subdivision must have been explicitly allowed in the conservation easement deed. Permitted subdivisions must be approved by you and NRCS before enrolling the easement. You can decide to have NRCS preapprove the maximum number of separate parcels and divisions, the locations of the division lines, legal access, and impervious surface allocations during the drafting of the conservation easement deed. If there are no deviations from this preapproval, you will only need to notify NRCS prior to dividing the parcel. If subdivision is allowed but not preapproved, the boundaries of any proposed division, access, utilities, and the impervious surface limit allocation between the proposed parcels must be approved by you and NRCS. NRCS will consider the median size of agricultural operations in the county using information from the National Agricultural Statistics Service (NASS) when reviewing requests for subdivisions.
• Industrial or Commercial Activities. Commercial enterprises related to agriculture or forestry that are agreed to in the conservation easement deed may be allowed. Examples may be the sale of excess power generated in the operation of renewable energy structures approved by you for on-farm use or temporary or seasonal outdoor activities or events that do not harm the purpose of the easement. While these activities may be allowed by right in the conservation easement deed, you can create approval processes, subject to ACEP-ALE restrictions, for determining whether a proposed activity is considered “related to agriculture or forestry.”
• Construction. If the conservation easement deed allows for construction, you may approve projects proposed within existing building envelopes that meet impervious surface limits and all other deed restrictions (e.g., limits on the size of residential structures, if applicable). Agricultural improvements and utilities to serve approved buildings or structures, like structures for on-farm energy production, may be located outside of a building envelope with your approval. Structures for off-farm energy production are generally prohibited by the program purposes and the conservation easement deed.

In addition, roads may be constructed, widened, or improved with your prior approval if they are necessary to carry out the agricultural operation but are always subject to impervious surface caps. Roads for other purposes cannot be authorized. For easements that protect Grasslands of Special Environmental Significance (GSS), new roads cannot negatively impact the habitat, species, or sensitive natural resources identified for protection in the BDR.

Construction proposals that will result in “fixing” the location of a floating building envelope or adjusting its boundaries will require your approval and NRCS approval, if they are allowed in the conservation easement deed. During review, NRCS will seek to minimize the impacts on prime farmland and locate building envelopes near existing roads, structures, and other approved building envelopes. NRCS will not permit the size of the building envelope to be expanded nor to allow a greater number of building envelopes than what was originally allowed in the conservation easement deed even if they total the same acreage as originally allowed.

• Easements for Utilities and Roads. If the conservation easement deed allows granting or modifying easements for utilities and roads, there must be no adverse impact on the purpose of the easement and you and NRCS must approve in writing.
• Surface Alteration. If the conservation easement deed allows for surface alteration, a small number of activities are allowed with your prior approval when consistent with the deed. These might include dam construction, erosion and sediment control, and soil disturbance from construction consistent with the purpose of the easement. Other activities that will disturb the soil surface or alter the topography, surface or subsurface water systems, or wetlands are prohibited.
• Surface and Subsurface Mineral Exploration and Extraction. Limited surface mining to support agricultural operations (e.g., the extraction of sand, gravel, or shale) can be authorized in the conservation easement deed. If you did not identify the allowed areas and activities in a deed exhibit, the landowner will need your prior approval. In addition, if you elected to allow subsurface mineral extraction, such activities must be approved by you and NRCS per instructions described in the conservation easement deed.
• Crop Cultivation on Grassland Enrollments. Grassland enrollments that are not GSS may allow crop cultivation on up to 10% of the easement area that is identified in an exhibit to the conservation easement deed as a Designated Crop Cultivation Area. You may approve future agricultural uses in these areas and approve other locations where crop cultivation is allowed as long as it stays within the 10% limit.
• ALE Plan and HEL Plan. If the agricultural use or ownership of the property changes, the ALE Plan, HEL plan, and any other management plans referenced in the conservation easement deed may be revised and approved. NRCS is responsible for updating and approving HEL plans. Depending on the ALE plan, you may need NRCS approval to make changes.

When the conservation easement deed requires your approval, document these decisions in writing. Also include justification and any contingencies or other guidelines necessary to implement the approval. In general, it is important to show how you followed your internal procedures and record what the decision was with analysis on whether the requested activity met conservation easement deed requirements. This is helpful in the event a violation related to activities that required your approval occurs later.

READ

1. ACEP-ALE Minimum Deed Terms
2. ACEP-ALE Minimum Deed Terms with Commentary

Understand Requirements for Changing the Deed

Easement administration actions are post-closing changes to an ACEP easement. There are two categories: (1) title corrections and legal adjustments; and (2) subordinations, modifications, exchanges, and terminations. Both require landowner and your consent and NRCS approval.

Title Corrections and NRCS-Approved Legal Adjustments

With NRCS approval, the conservation easement deed can be amended to make minor title corrections using a streamlined review process. These corrections may include typographical errors, minor changes in legal descriptions as a result of survey or mapping errors, and address changes. If an NRCS State Conservationist, in consultation with the USDA Office of the General Counsel, determines that a minor title correction or legal adjustment is appropriate they will submit supporting documentation to the Easement Programs Division (EPD) Director who can decide to approve or deny the title corrections or legal adjustment.

Legal adjustments to the conservation easement deed or its exhibits may result from the approval of:

• Internal changes on a conservation easement deed that will have a neutral or a positive benefit to the easement, such as subdivisions described with specificity in the deed; fixing floating building envelope locations; changing the location of a building envelope;
• Relocation of easement legal access
• Temporary work areas for third parties
• Acceptance of overlay easements to enhance easement protections
• Additional interests or protections, such as the unification of legal estates or adding acres to an existing conservation easement deed

If your agency or organization approves of the proposed activity, provide an analysis of how the request satisfies the conservation easement deed, documentation of your organization’s approval process, and any other supporting documentation to your state NRCS program manager for their review. The analysis and documentation needed to support a request depends on the individual property on a case-by-case basis.

The state NRCS program manager must seek approval from the State Conservationist who can either deny the request or recommend approval to the NRCS EPD Director. The EPD Director will review the recommendation and submitted materials and make a final decision to approve or deny the proposed title correction or legal adjustment. You will receive a written approval or denial of the proposal from the State Conservationist that you can provide to the landowner along with justification and next steps as applicable. After approval, the conservation easement deed amendment and any exhibits that were authorized can be recorded in the local land records.

Subordination, Modification, Exchange, and Termination

For subordinations, modifications, exchanges, and terminations, proposed changes must be unavoidable, have a public benefit, and, with the exception of terminations, must not result in a net loss of enrolled acreage and equal or greater conservation functions and values. Administration actions cannot be used to cure a violation of the conservation easement deed. These actions are discretionary, voluntary real estate transactions between the United States, the landowner, and other parties with an interest in the easement. Specific threshold criteria and requirements are further described in Title 440, Conservation Programs Manual, Part 528 ACEP manual and provided below:

• Easement Subordination. NRCS agrees to subordinate all or a portion of its real property rights or interests in an easement to a third party. This is usually used to authorize rights-of-way for utilities or transportation.
• Easement Modification. NRCS agrees to adjust the boundaries or terms of a conservation easement deed that will result in equivalent or greater conservation value, acreage, and economic value to the United States, and the modification only involves lands within or physically adjacent to the original easement area.
• Easement Exchange. NRCS relinquishes all or a portion of its real property rights or interests in an easement that are replaced by real property rights or interests granted through an easement that has equivalent or greater conservation value, acreage, and economic value to the U.S. on land that is not adjacent to the original easement area.
• Easement Termination. NRCS agrees to terminate its rights or interests in an easement or portion thereof to facilitate a project that addresses a compelling public need for which there is no practicable alternative, and such termination action will result in equivalent or greater conservation value and economic value to the United States. NRCS is provided compensation for such termination.

Subordinations, modifications, exchanges, and terminations may be initiated by NRCS, a landowner, an easement holder, or a third-party project proponent—such a private corporation, state or federal agency or a neighbor. The landowner and easement holder must both consent to the proposal for NRCS to consider the request.

Eminent Domain

A third party, such as an energy pipeline company or state highway agency, may have the authority to exercise eminent domain to obtain ownership of a property. The exercise of eminent domain could terminate both the landowner and easement holder’s interests in the part of the property that is condemned. The United States’ interest, however, would not be affected because property rights held by the United States generally are not subject to taking by eminent domain. The third party would become the landowner for the condemned portion of the property and could consent to the administration action. This is extremely rare. In most cases, NRCS will work with the easement holder, landowner, and project proponent to negotiate a resolution that upholds the purposes of the easement and avoids condemnation. For example, if a utility company seeks to construct overhead powerlines on a protected parcel against the wishes of the owner, NRCS working together with the landowner and entity partners will attempt to negotiate with all parties to avoid condemnation and instead subordinate the easement to a powerline right-of-way.  If feasible, the powerlines could also be buried so that farming activities could continue.  Planned infrastructure projects—those with a definitive route—can cause nearby properties to be ineligible for enrollment. NRCS funding cannot be used to prevent known infrastructure projects.

Agency Review

When making an administration action request for NRCS review, the project proponent pays for all expenses, including analysis and legal and title costs. Analysis usually includes an environmental evaluation, legal survey(s), a Uniform Standard of Professional Appraisal Practice (USPAP) before and after appraisal, and any due diligence including title reviews. Once a request is submitted, the state NRCS program manager must seek approval from the State Conservationist who can either deny the request or recommend approval to the NRCS EPD Director. The EPD Director will review the recommendation and submitted materials and make a final decision to approve or deny the proposed administration action. Subject matter experts within the agency may be consulted for input on these recommendations. A final decision by NRCS is not subject to appeal.

In addition, since an administration action has the potential to convert important farmland to non-farm use, NRCS must evaluate it under the Farmland Protection Policy Act. NRCS also evaluates the action under the National Environmental Protection Act (NEPA) because these types of changes may adversely affect the environment. Under these reviews, NRCS will first seek to avoid any impact to the easement, and, if that is not possible, will attempt to minimize impact to the easement area. If NRCS determines that adverse impacts cannot be avoided or minimized, it may only continue to evaluate the request if the project proponent will compensate for lost conservation and economic values. Compensation may include, but is not limited to, enrolling new acres, or increasing the protection and function of already enrolled acres. If adverse impacts cannot be avoided, minimized, or adequately compensated for, NRCS must deny the request.

WATCH

1. ACEP-ALE Stewardship Webinar