Assess Your Readiness

Before you invest more time, consider if you are:

• Comfortable working with a federal agency. You and every other landowner will need to share personal information with USDA in order to participate in the program.
• Willing to live with a permanent restriction on your property. You will work with a farmland protection partner to walk through the provisions of an easement deed to understand how it will impact your property.
• Willing to maintain a long-term relationship with a farmland protection partner who will work with you to uphold the terms of the easement.

Identify Farmland Protection Partners

Participating in ACEP-ALE requires that you find an eligible entity that will agree to hold the easement on your land. Eligible entities can include nonprofit organizations, like land trusts, state or local government bodies, or Indian tribes and must meet the ACEP-ALE criteria including having an existing program that protects farmland or ranchland. The entity will be your partner throughout the application and acquisition processes and will continue to monitor and enforce the easement on your land once the closing is complete.

The entity will be the primary applicant for ACEP-ALE and is responsible for gathering and submitting the application materials and supporting documentation. The entity is the applicant because they are requesting the matching funds from NRCS to help pay you for the easement on your land.

For more information about entity eligibility criteria, visit the ACEP-ALE for Entities web pages. Eligible entities can include the organizations listed below.

Land Trusts

A land trust is a private, nonprofit organization that protects natural resources such as productive farm and forest land, watersheds, rivers and streams and recreational areas. Land trusts acquire land and/or conservation easements, accept donated land and/or easements, facilitate land protection projects, and steward properties and easements to ensure that the conservation purposes are upheld over time.

State and Local Programs and Agencies

Programs administered by public agencies can participate in ACEP-ALE.

The most active public entities are Purchase of Agricultural Conservation Easement Programs (PACE) that pay property owners to keep productive land available for agriculture. PACE is known as purchase of development rights (PDR) in many locations.

Twenty-eight states have agencies that administer PACE as a public program, often through the State Department of Agriculture. The state program either purchases and manages easements directly or provides funds that local governments or non-governmental organizations can use to purchase and manage the easement. Local PACE programs work the same way though are administered at the local level by a county, city or town government. 

Another local entity that can serve as a partner is a local soil and water conservation district. Soil and water conservation districts are in almost every county in the U.S. and work with landowners in their area to promote resource conservation.

Tribal Entities

Tribal entities also are eligible to participate in ACEP-ALE. They must be a “federally recognized Tribe”, meaning they are listed in an annual publication from the Bureau of Indian Affairs (BIA) in the Federal Register.

READ

1. PACE Fact Sheet
2. State PACE Programs Fact Sheet
3. Local PACE Programs Fact Sheet

WATCH

1. How to Use the Farmland Protection Directory 

USE

1. Farmland Protection Directory
2. Land Trust Alliance – Find a Land Trust Tool
3. Conservation District Directory
4. List of Federally Recognized Tribes
5. List of National Tribal Organizations

Explore Your Eligibility

Landowners who want to apply to ACEP-ALE need to meet minimum eligibility criteria related to income and on-farm conservation compliance. Each landowner must separately qualify to receive USDA funds to be eligible. Therefore, it is important to identify every person or entity that has ownership rights in the land prior to applying, as each will need to separately complete eligibility documentation. If the land is owned by an entity, all members of that entity must meet income requirements. Depending on the entity ownership structure, members may need to meet conservation compliance requirements. Your farmland protection partner and the staff at USDA’s Farm Service Agency can help guide you through the eligibility certification process.

In order to be eligible, you will need to have the following three items:

• An average Adjusted Gross Income (AGI) below $900,000 for the three preceding tax years.
• Compliance with USDA’s conservation requirements for highly erodible land and wetlands.
• Farm records established with FSA.

The Farm Service Agency (FSA) is an agency of the USDA that handles many financial operations for the department’s programming. For ACEP-ALE, FSA is the agency that verifies landowner eligibility to receive funding. FSA offices are often co-located with NRCS offices. These offices are called Service Centers and have locations in almost every county across the country. You can make an appointment with your local Service Center to get the relevant forms and receive assistance completing them. When making your appointment, ask FSA staff what documentation you should bring with you in order to streamline the process. If you have participated in USDA programs in the past, you may have records already established that identify the parcels you own and/or farm and other farm information.

FSA staff will enter your identifying information and parcel information into USDA’s centralized Service Center Information Management System (SCIMS), which is needed to process your eligibility certification. The resulting report is a Subsidiary Print that summarizes key eligibility information. Ideally, this documentation should be completed at least 2 to 3 months before applying. You should contact FSA and start the process as early as the start of the new federal fiscal year (October 1).

READ

1. FSA AGI Fact Sheet
2. USDA Conservation Compliance Fact Sheet
3. ACEP-ALE Fact Sheet
4. Example Subsidiary Print

USE

1. Landowner Eligibility Checklist 
2. USDA Service Center Locator

Check Your Land’s Eligibility

Have a discussion with your farmland protection partner about the criteria that need to be satisfied to make your land eligible for ACEP-ALE funding. Work with your partner to talk about your long-term land planning needs and goals and discuss how to make an ACEP-ALE easement work for your land within the program guidelines.

In order for your land to be eligible, it needs to satisfy a list of 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.
• 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 agricultural land, or be subject to a buy-protect-sell transaction.

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 by NRCS in ranking the application against others. 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.

Consider Parcel Boundaries

At the beginning of the application process, it’s important to think about what land to enroll. The arrangement of the acres proposed for enrollment will impact your land’s eligibility and ranking. Note that changing the configuration changes the value, so this should happen before an application is submitted. If the proposed easement boundaries are different than the property boundaries, you may need to procure a survey before closing on the easement. 

Start exploring potential easement boundaries with your farmland protection partner using the Web Soil Survey tool below, noting your property’s land uses and soil quality.  For more information about whether you and your land qualify for ACEP-ALE, review and discuss these resources with your farmland protection partner and visit the ACEP-ALE for Entities page.

Discuss the Deed

It is important to understand your farmland protection partner’s conservation easement and the ACEP-ALE minimum deed terms that will be incorporated into the easement before applying. ACEP-ALE minimum deed terms are mandatory. It may be difficult to change your easement once it is on the land. Hire your own attorney to help review the easement terms and represent your interests in the transaction, which may be different than your farmland protection partner’s interests.

Some deed provisions depend on choices you and your farmland protection partner make before closing. Think about how the terms will affect your operation and ability to achieve personal and business goals. For instance, the deed will specify a land enrollment type (farmland, grassland, or grassland of special environmental significance) that may impact agricultural production. If you are awarded ranking points for a particular resource, such as wildlife habitat, the easement provisions have to protect that resource, which may affect future uses of your land. Pay particular attention to the following ACEP-ALE minimum deed term limitations which are described in the Minimum Deed Terms below: 

• 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

READ

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

WATCH

1. How to Use the Web Soil Survey

USE

1. Land Eligibility Checklist
2. Web Soil Survey
3. American Bar Association Lawyer Referral Directory

Learn About Funding Availability for ACEP-ALE

Each year, NRCS issues guidance on ACEP-ALE implementation. After this 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. Your farmland protection partner will likely be aware of the typical application timelines. In addition, you can find the web pages for your state office using the “List of NRCS State Offices” link below. Select your state and navigate to “Programs”, “Easements”, then “ACEP-ALE”. If information is not available or out of date, contact the state program manager.

USE

1. List of NRCS State Offices 

Gather Supporting Documentation

NRCS makes determinations about eligibility and ranking based on the documentation you and your partner supply. 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. Landowner Eligibility Checklist
2. Land Eligibility Checklist 

Complete Your Application Form

Your partner will take the lead on filling out the application forms for ACEP-ALE. They will complete an Entity Application (CPA-41) to establish their relationship with NRCS. The Parcel Sheet (CPA-41A) is the application form that gathers information about your parcel and the funding requested. You will sign this Parcel Sheet and certify you have received and understand the easement requirements. Funding decisions will only be made once all application forms are submitted with supporting documentation. 

USE

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

Prepare for Site Visit

If your application meets NRCS eligibility criteria, agency staff will work with you and your farmland protection partner to set up a site visit. This is needed to verify the application materials and the condition of the land and infrastructure. NRCS staff will complete the three below forms with information from an interview with you and the site assessment. In addition, NRCS will work 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. Funding decisions are made once these steps are complete.

USE

1. Hazardous Materials Field Inspection Checklist
2. Hazardous Materials Landowner Interview
3. Landowner Disclosure Worksheet

Now that your farmland protection partner has submitted an ACEP-ALE application that has gone through an initial review, what comes next? NRCS will notify your partner that your project was selected for funding. Your partner will coordinate with NRCS to manage the acquisition process through closing. Timing and coordination of the acquisition process varies depending on your state and partner. Remember to keep in regular contact with your partner throughout the process. The sooner you can respond to requests for information from your partner, the better. See below for key steps in the process. Most documents are due at least 90 days before the planned closing date, but your partner may want to complete these steps sooner so there is time to resolve any issues that come up in the review process.

Execute NRCS Parcel Contract

Your partner will enter into a Program Agreement with NRCS as well as a Parcel Contract specific to your property. The Parcel Contract includes a series of forms that identify the entity partners, the amounts to be paid for the easement, identifies you as the landowner, and confirms you meet eligibility criteria. Once your partner and NRCS sign these forms, the clock starts for acquiring an easement. In general, ALEs must close within three years, but some extensions may be approved.

Develop the Deed

You will work with your partner to finalize the deed (“the ALE deed”). Your partner will work to incorporate the ACEP-ALE Minimum Deed Terms (MDT) into their conservation easement. Make sure an attorney representing your interests reviews the draft ALE deed to understand its potential impacts on your land and operation and future operations. Pay particular attention to the following terms which depend on choices you and your farmland protection partner make before closing:

• Limit on impervious surfaces restricts surfaces covered by asphalt, concrete, or roofs, not including unpaved roads, to 2% of the easement area, though waivers requested from NRCS for up to 10% may be possible. MDT Section I, Paragraph (1).
• Subdivisions are generally prohibited after the easement. If the entity will allow future conveyance of subdivisions, they must identify the maximum number of separate parcels and divisions in the ALE deed and whether they will seek NRCS approval of the subdivisions prior to the easement or after. MDT Section I, Paragraph (2)(A).
• Industrial or commercial uses related to agricultural production and consistent with the purpose of the ALE are allowed, but specific activities need to be listed. MDT Section I, Paragraph (2)(B).
• Construction on the protected property must be located within building envelopes (a.k.a. farmstead areas). These are areas where existing and future structures on the farm or ranch are located. You and the entity will determine the number, locations, and size of the envelopes. This includes any additional residences for family or farm employees. MDT Section I, Paragraph (2)(C).
• Surface and subsurface mineral exploration and extraction are generally prohibited after the easement. However, the entity can either prohibit mineral development entirely or limit it to subsurface mineral development with conditions. 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. You will choose to identify the extraction location as an exhibit to the deed or opt to request permission from your partner in advance of extraction activity. MDT Section I, Paragraph 2(F).
• Applicable management plans, including conservation plans for highly erodible cropland and Agricultural Land Easement Plans you and your partner agreed to are identified in the ALE deed. 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 your attorney and farmland protection partner 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.

Your partner will submit the draft deed to NRCS for approval at least 90 days before the planned closing date so there is time to address any issues. NRCS will review the easement for compatibility with the program requirements.

Confirm Legal Description

The description of the parcel included in the ALE deed must match the description in the underlying property deed and meet the state’s survey standards. It should identify all easements, rights of way, encroachments, etc. You or your partner will 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. Your partner may hold off on ordering a new survey, if required, until the appraisal and title review are completed to avoid unnecessary costs.

Your partner will 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 Minimum Deed Terms with Commentary
2. ACEP Title Exception Guide

Procure an Appraisal

Your partner will obtain a determination of the fair market value of the ALE by ordering an appraisal report. You will not select the appraiser or be listed as the client. 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.

Your farmland protection partner may have obtained an appraisal before submitting the application to inform their negotiations with you and enable them to submit a more accurate request for the ACEP-ALE cost-share (the NRCS share is based on the lower of the value requested on the application or the appraised value). In addition, some states may also provide ranking points for submitting an appraisal with the application.

An update to the appraisal may be necessary if ordered far in advance, however, because the appraised value must be determined within 6 months before or after the date the Parcel Contract is signed or within 12 months before closing. The final version of the ALE deed needs to be considered in the appraisal if the deed terms provided to the appraiser changed. Your partner will submit the final appraisal report to NRCS for a technical review at least 90 days before closing.

Secure Clear Title

Title Review and Commitment

Your partner will need to obtain a legal title review. The resulting report will identify any outstanding interests, exceptions, or issues. Typical issues that will need to be addressed include mortgages, life estates, judgments, leases, and mineral interests. Your attorney, in consultation with your partner, is responsible for reconciling any title issues.

Mortgages must be subordinated or removed. NRCS may allow you to use your 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. Your partner will discuss any mineral interests, rights, or leases with your state NRCS program manager.

At this stage, your attorney and your partner 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 approved by NRCS. To make this process smoother, your partner will explain in writing why each title exception will not impact the ALE and submit these explanations to NRCS. NRCS will determine whether these exceptions are acceptable and will take into consideration your partner’s documentation.

At least 90 days before closing, your partner will 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

Your partner will secure proper title insurance using an American Land Title Association (ALTA) Owner’s Policy with your partner listed as the insured. The policy issued must be for at least the full amount of the agricultural land easement purchase price.

USE

1. USDA Subordination Agreement and Limited Lien Waiver (AD-1158)

Obtain Your Plans

In general, you are not required to have a land management plan to participate in ACEP-ALE. There are three circumstances that require plan development and implementation.

• If any portion of your parcel contains highly erodible cropland, it must be managed in accordance with a HEL conservation plan. The plan will be developed by NRCS or a NRCS-certified planner in consultation with you.
• 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.
• In addition, some states award ranking points for an Agricultural Land Easement Plan (ALEP), an optional plan that can include component parts like a grassland management plan, forest land management plan, and/or a schedule for implementing conservation practices.

Draft plans are submitted for NRCS review at least 90 days before closing.

READ

1. Sample ALE Plan
2. HEL/WC Compliance Fact Sheet

Prepare a Baseline Document Report

Your farmland protection partner will prepare a Baseline Document Report that documents the baseline conditions on your property 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.  It will be referenced for monitoring and stewardship activities. Your partner will provide NRCS a draft report at least 90 days before the planned closing date of the ALE.

READ

1. Baseline Document Report List of Items

Reaffirm Funding and Submit Payment Request

You and your partner will confirm the sources of the non-Federal share of the easement cost and sign the appropriate version of form NRCS-CPA-230. You may be asked to help document any expenses being used as part of the non-Federal share.

Your partner will submit a Payment Request Package to NRCS with the latest versions of all items outlined above. Ideally, these will be the final versions that have integrated all revisions or changes identified by NRCS during prior review. NRCS cannot authorize the closing or payment until the package is approved. Your partner will arrange for an advance payment or for reimbursement. Either way, you will receive payment for the easement at closing. Advance payments require earlier submission of the final documents and request package.  

USE

1. Form NRCS-CPA-230E and Form NRCS-CPA-230F, “Statement to Confirm Matching Funds”
2. Form NRCS-CPA-1268, “Conservation Activity Approval and Payment Application for Acquisition of Easements”

Complete the Transaction

The easement closing is the transaction that officially transfers your property’s development rights to your farmland protection partner in exchange for payment. You and your partner can proceed to closing once your partner receives approval from NRCS. Your partner’s attorney or a title or escrow company often serves as the closing agent.

The closing agent coordinates the documents needed to complete the easement transaction, including the ALE deed and any subordination agreements. They examine the real estate records from the date of the title commitment to the closing to make sure no new encumbrances have been recorded. The closing agent prepares a closing or settlement statement, if applicable, and disburses the payment to you minus any costs of recording the deed and other title documents. The agent then records the ALE deed in the office where local land records are officially recorded in that state (e.g., clerk or registrar of land records) within 5 business days of the closing date.

After the closing, the closing agent will issue a title insurance policy to your partner. For advance payments, the closing agent will prepare the IRS Form 1099-MISC reporting information for you for the full easement compensation amount. Your partner may prepare the Form 1099-MISC for reimbursement payments.

Promote the Project

Once the project is complete, your partner may ask for your help acknowledging key stakeholders and highlighting project outcomes. This outreach can help raise public awareness about the importance of farmland and ranchland protection and build public support. By acknowledging key funding sources like ACEP-ALE, you can help demonstrate the need for these programs to policymakers. You may also find that your willingness to permanently protect your land is important to your customers and could consider ways to use this project to promote and market your business.

You can share your story using the below Success Story Template to create a profile with your partner about the project. If you are willing to share information about the project, express why you wanted to protect your land and what goals the project helps you 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 you.

USE

1. NRCS Success Story Template