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Welcome to the ACEP-ALE Toolkit. Learn how to successfully participate in the Agricultural Land Easement component of the Agricultural Conservation Easement Program. This Toolkit provides fact sheets, videos, annotated checklists, and more to walk you through each phase of the process.
Learn About ACEP-ALEThe Agricultural Conservation Easement Program – Agricultural Land Easement component (ACEP-ALE) is a voluntary federal conservation program implemented by the USDA Natural Resources Conservation Service (NRCS) that protects agricultural land from conversion to non-agricultural uses. ACEP-ALE provides matching funds to eligible entities to acquire conservation easements on farm and ranch land.
A conservation easement is a deed restriction used to protect natural resources on land. An agricultural conservation easement makes land available for agricultural uses, which may keep land affordable and support land access and succession. A conservation easement may also provide potential tax benefits to landowners. Agricultural conservation easements limit what can be built on the property and where structures can be located, limit non-agricultural development, subdivision and other uses that are inconsistent with agriculture.
The Agricultural Conservation Easement Program (ACEP) provides technical and financial assistance to protect farm and ranch lands and conserve grasslands and wetlands. Under the Agricultural Land Easement (ALE) component of ACEP, NRCS provides matching funds to eligible entities, state and local governments, non-governmental organizations, and Native nations to acquire agricultural conservation easements on working agricultural lands.
NRCS sets minimum criteria that all land, landowners, and entities must meet in order to qualify for program participation. They process and rank the applications which are submitted by entities. The number of applications submitted varies from state to state. Contacting your state NRCS program manager can give a sense of how competitive applications have been in the past.
Once the easement transaction has closed, the entity maintains responsibility for stewarding the land in perpetuity according to terms in the agreement. Additionally, NRCS maintains a right of enforcement throughout the life of the easement.
Consider your organization’s capacity to handle these responsibilities before deciding to participate. R eview the following pages to learn about eligibility criteria, applying for ACEP-ALE participation, and holding an agricultural conservation easement.
NRCS is a federal agency within the U.S. Department of Agriculture. NRCS works with farmers and landowners to help improve agricultural productivity and protect natural resources through conservation programs and technical assistance.
The agency has a state office in each state and local service centers in most counties throughout the U.S. Some local service centers serve more than one county.
As you proceed through the ACEP-ALE application process, NRCS field staff in local service centers can help answer questions about using the Web Soil Survey and understanding the soils and land uses of potential easement land. This will be relevant when determining the land’s eligibility. Field staff can also assist with connecting your entity and the landowners you work with to the USDA Farm Service Agency (FSA) to complete forms required for eligibility.
NRCS field staff may administer several programs simultaneously, and while ACEP-ALE administration may not be their primary task, they are a good general resource for conservation programs and processes.
The ACEP-ALE program manager, typically located in the NRCS state office, can answer any program-related questions you may have. Each state has ranking criteria, application deadlines, and funding opportunities. Contacting your state program manager will help you understand how ACEP-ALE is administered in your state. Staff capacity may be limited in some states. Call the program manager to set up a time to ask specific ACEP-ALE questions.
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.
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:
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.
Before you invest a lot of time:
If a project passes your initial screening, you can decide on a transaction type and spend more time confirming landowner and land eligibility.
There are two types of ACEP-ALE transactions:
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:
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.
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.
After the initial screening, work with your landowner to confirm that the land meets all of the applicable land eligibility criteria:
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.
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.
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.
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:
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 ar e different than the property boundaries, the landowner may need to procure a survey.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
You can proceed to closing once you have 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.
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:
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.
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.
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:
Your monitoring report should specifically address the following items:
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 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.
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:
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.
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).
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:
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 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.
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.
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.
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:
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.
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:
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.
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.
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.
