This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

8113 

Vol. 86, No. 22 

Thursday, February 4, 2021 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1468 

[Docket ID NRCS–2019–0006] 

RIN 0578–AA66 

Agricultural Conservation Easement 

Program 

AGENCY: Natural Resources 

Conservation Service (NRCS) and the 

Commodity Credit Corporation (CCC), 

United States Department of 

Agriculture. 

ACTION: Final rule. 

SUMMARY: This final rule adopts, with 

minor changes, an interim rule 

published in the Federal Register on 

January 6, 2020. The interim rule 

implemented changes to ACEP that 

were necessitated by enactment of the 

Agriculture Improvement Act of 2018 

(the 2018 Farm Bill) and changes for 

administrative streamlining 

improvements and clarifications. This 

final rule makes permanent many of the 

changes made in the interim rule, 

responds to comments received, and 

makes further adjustments in response 

to some of the comments received. 

DATES: Effective: February 4, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Lindig, (202) 720–1882, or 

carrie.lindig@usda.gov. Persons with 

disabilities who require alternative 

means for communication should 

contact the USDA Target Center at (202) 

720–2600 (voice). 

SUPPLEMENTARY INFORMATION: 

Background 

The 2018 Farm Bill reauthorized and 

amended ACEP. The 2018 Farm Bill 

authorized the use of the existing 

regulations that had been implemented 

under the Agricultural Act of 2014 for 

the remainder of FY 2019 to the extent 

that those regulations were consistent 

with the 2018 Farm Bill changes. 

On January 6, 2020, CCC published an 

interim rule with request for comments 

in the Federal Register (85 FR 558–590) 

that implemented mandatory changes 

made by the 2018 Farm Bill or that were 

required to implement administrative 

improvements and clarifications. This 

final rule adopts, with minor changes, 

the interim rule. 

Discussion of ACEP (7 CFR part 1466) 

ACEP helps farmers and ranchers 

preserve their agricultural land and 

restore, protect, and enhance wetlands 

on eligible lands. The program has two 

components: 

(1) Agricultural land easements 

(ACEP–ALE); and 

(2) Wetland reserve easements 

(ACEP–WRE). 

The Secretary of Agriculture 

delegated authority to the Chief, NRCS, 

to administer ACEP. 

Through ACEP–ALE, NRCS provides 

matching funds to eligible entities that 

are State, Tribal, and local governments, 

and nongovernmental organizations 

with farm and ranch land protection 

programs, to purchase agricultural land 

easements. Agricultural land easements 

are permanent or for the maximum 

duration authorized by State law. 

Through ACEP–WRE, NRCS protects 

wetlands on eligible lands by 

purchasing an easement directly from 

eligible landowners or entering into 30- 

year contracts on acreage owned by 

Indian Tribes, in each case providing for 

the restoration, enhancement, and 

protection of wetlands and associated 

lands. Wetland reserve easements may 

be permanent, 30-years for acreage 

owned by Indian Tribes, or the 

maximum duration authorized by State 

law. 

Participation in either ACEP–ALE or 

ACEP–WRE is voluntary. 

The interim rule: 

• Incorporated changes to the ACEP 

purposes to limit nonagricultural uses 

that negatively affect agricultural uses 

and conservation values; 

• Added language to specify general 

monitoring responsibilities under 

ACEP–ALE and ACEP–WRE; 

• Removed references to the Regional 

Conservation Partnership Program 

(RCPP) as the 2018 Farm Bill revised 

RCPP as a stand-alone program, which 

is now in 7 CFR part 1464; 

• Added definitions to reflect 2018 

Farm Bill changes: Buy-protect-sell 

(BPS) transaction, monitoring report, 

wetland restoration, easement 

administration action, grazing 

management plan, and nonindustrial 

private forest land; 

• Removed definitions for: Active 

agricultural production, forest land, 

forest land of statewide importance, and 

projects of special significance; 

• Made changes to easement 

administration actions, including 

specifying the criteria that apply to each 

type of easement administrative actions; 

• Made revisions to the 

environmental markets section in 

response to the 2018 Farm Bill; 

• Removed the requirement that an 

eligible entity provide evidence at the 

time of application that they have funds 

available to meet the minimum cash 

contribution requirement; 

• Eliminated the requirement that 

land with a certain amount of forest 

land have a forest management plan; 

• Replaced the term ‘‘proposed’’ with 

‘‘permitted’’ in text about the types of 

rights-of-way, infrastructure 

development, or other adjacent land 

uses whose impacts may cause land to 

be considered ineligible; 

• Specified that under a BPS 

transaction, the eligible entity for 

meeting payment eligibility 

requirements (highly erodible land and 

wetland conservation, and Adjusted 

Gross Income (AGI)) is the landowner 

unless the eligible entity sells the fee 

title to a qualified farmer or rancher 

prior to, or at the time of, the easement 

closing, in which case the farmer or 

rancher purchaser must meet payment 

eligibility requirements; 

• To address BPS transactions, 

specified that eligible lands owned by 

the eligible entity may be eligible for 

enrollment if the land is owned, on a 

transitional basis, to protect the land 

through securing an agricultural land 

easement on the land and to transfer fee 

title ownership to a farmer or rancher; 

• Specified eligibility requirements 

related to BPS transactions; 

• Specified that NRCS will consider 

eligible entity cash contribution toward 

the easement purchase price and 

measures to increase agricultural 

viability as ranking criteria; 

• Specified that appropriate terms 

and conditions must be included in the 

easement deed to address items agreed 

to by the eligible entity as a matter of 

ranking and basis for selection for 

funding; 


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• Removed the requirement for the 

eligible entity to contribute its own cash 

resources in an amount equal to 50 

percent of the amount of the Federal 

share; 

• Specified the incurred costs by the 

eligible entity associated with securing 

a deed to the easement that may be 

included in the calculation of the nonFederal share, and that the source and 

limit of other costs that may be included 

in the calculation of the non-Federal 

share; 

• Removed reference to the 

availability of waivers for grasslands of 

special environmental significance since 

the specific eligible entity cash 

contribution requirement was removed; 

• Added specificity to the right of 

enforcement conveyed to NRCS under 

the terms of an agricultural land 

easement; 

• Removed the requirement that the 

agricultural land easement be subject to 

an ACEP–ALE plan; 

• Specified the terms and conditions 

required by statute that must be 

addressed if the eligible entity chooses 

to allow subsurface mineral 

development on the land subject to the 

agricultural land easement; 

• Revised the requirement for a 

conservation plan on highly erodible 

cropland; 

• Provided that an eligible entity may 

include terms and conditions in the 

ACEP–ALE deed that are intended to 

keep the land subject to the easement 

under farmer or rancher ownership; 

• Removed the stand-alone section 

regarding ACEP–ALE plans and 

captured in other sections the 

provisions related to development of 

required conservation plans or 

development of ACEP–ALE plans as 

agreed-to by the eligible entity; 

• Incorporated two new categories 

under which an eligible entity may 

demonstrate that they meet the ACEP– 

ALE certification requirements and 

revised the criteria to require a 

minimum of 10 agricultural land 

easements under ACEP–ALE, or 

predecessor NRCS easement programs, 

for all eligible entities seeking 

certification; 

• Specified the circumstances under 

which NRCS may exercise its right of 

enforcement under ACEP–ALE, 

including its right of inspection; 

• Increased the percent of acres of 

total cropland in a county that may be 

subject to an ACEP–WRE easement to 15 

percent; 

• Removed the requirement for NRCS 

to seek input from the Secretary of the 

Interior at the local level in the 

determination of eligible land; 

• Included water quality as an 

additional priority along with the 

priority placed on acquiring wetland 

reserve easements based on the value of 

the easement for protecting and 

enhancing habitat for migratory birds 

and other wildlife; 

• Specified that grazing under reserve 

grazing rights wetland reserve easement 

or 30-year contract must comply with a 

wetlands reserve plan of operations 

(WRPO) developed by NRCS, which 

may include a grazing management plan 

component, and identified that the plan 

may be reviewed and modified as 

necessary, at least every 5 years; and 

• Included new provisions related to 

the evaluation and authorization of 

compatible uses on wetland reserve 

easements, including that in evaluating 

and considering compatible uses NRCS 

will consider whether the use will 

facilitate the practical administration 

and management of the easement or 

contract area and ensure that the use 

furthers the functions and values for 

which the land was enrolled. 

Summary of ACEP Comments 

The interim rule 60-day comment 

period ended March 6, 2020, and was 

extended to March 20, 2020, to provide 

the public an opportunity to consider 

the January 24, 2020, correction. 

Seventy commenters, including 

individuals, organizations, and 

agencies, submitted comments to 

regulations.gov. NRCS reviewed the 

input from these 70 commenters in 

response to the rule and identified 576 

comments contained within these 70 

entries. NRCS reviewed these 576 

comments and categorized and 

summarized them according to the 

topics identified below. The topics that 

generated the greatest response were on 

ALE ranking, ALE BPS transactions, and 

definitions. 

Overall, the comments expressed 

general support for the changes made in 

the interim rule. Six comments were not 

relevant to the ACEP interim rule. Ten 

comments expressed general support for 

the regulation and three comments 

criticized the regulation in general. 

These comments did not include any 

recommendations for change. 

NRCS appreciates all comments 

submitted and thanks each person and 

organization who expressed an opinion 

related to ACEP or the interim rule. 

NRCS will continue the endeavor to 

improve its customer service and the 

equitable dispensation of benefits under 

ACEP. 

In this rule, the comments have been 

organized alphabetically by topic. The 

topics include: 

• ALE Buy-Protect-Sell Transactions; 

• ALE Contribution Requirements; 

• ALE Deed Requirements and Terms; 

• ALE Entity Certification; 

• ALE Land Eligibility Issues; 

• ALE Planning; 

• ALE Program Requirements; 

• ALE Ranking; 

• Definitions; 

• Easement Administration Actions; 

• Environmental Markets; 

• Fund Allocations; 

• Landowner Eligibility—AGI 

Limitation Waiver; 

• Program Administration; and 

• WRE Issues. 

This final rule responds to the 

comments received by the public 

comment deadline and makes minor 

clarifying and related changes. 

ALE Buy-Protect-Sell Transactions 

BPS transactions are arrangements 

under ALE, first authorized under the 

2018 Farm Bill, between NRCS and an 

eligible entity where the entity owns or 

will own the land prior to the 

acquisition of the agricultural land 

easement on the property, and the 

eligible entity either: 

(1) Sells fee title to the land to a 

farmer or rancher prior to or at easement 

closing; or 

(2) Holds fee title at the time the 

agricultural land easement is conveyed 

on that land, and transfers ownership of 

the land subject to the easement to a 

farmer or rancher not later than 3 years 

after the date of acquisition of the 

agricultural land easement. 

NRCS received comments related to 

BPS transactions, several of which 

expressed support for allowing BPS 

transactions. Remaining comments were 

as follows: 

Comment: NRCS received comment 

related to the requirement to sell at 

agricultural value except that eligible 

entities could charge qualified farmers 

or ranchers certain holding and 

transactions costs. These comments 

requested a change to the amount an 

eligible entity may charge the qualified 

farmer or rancher as part of the sale of 

the property, recommending either that 

the 10-percent limitation be removed or 

increased to 10 percent of the total fair 

market value (FMV) of the property 

rather than 10 percent of the agricultural 

value. Other comments recommended 

that the sale be based on appraised 

agricultural value (rather than lesser of 

appraised agricultural value or original 

purchase price) to avoid a potential 

windfall to the purchaser that might 

raise private benefit or other issues 

under federal tax law if the eligible 

entity is a nongovernmental 

organization. 

Response: The 10-percent limit was 

identified because NRCS may have to 


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recover costs if the conveyance includes 

more than ‘‘reasonable holding and 

transaction costs.’’ It is consistent with 

industry standards and the use of a 

published upper limit removes the 

potential for arbitrary decision making 

and expensive challenges in cost 

recovery cases. Additionally, this 

transaction type aims to help farmers 

and ranchers gain access to affordable 

farmland, and a limit on the holding 

and transaction costs that may be 

charged to the farmer or rancher ensures 

that there is no circumvention of that 

intent. 

A discussion of the federal income tax 

regulatory requirement that an 

organization described in section 

501(c)(3) of the Internal Revenue Code 

(IRC) operate for the benefit of public 

rather than private interests is outside 

the scope of both the jurisdiction of the 

United States Department of Agriculture 

and this rule. For more information 

about the requirements applicable to 

tax-exempt organizations, including 

those described in section 501(c)(3) of 

IRC, visit the IRS’s Charities and 

Nonprofits page at www.irs.gov/ 

charities-and-nonprofits. 

The ACEP statute requires the sale to 

be at ‘‘agricultural value’’ plus any 

reasonable holding costs. A sale at FMV 

assumes that the impact of the 

placement of the easement on the land 

will result in the highest and best use 

of the land being agriculture, and thus 

agricultural value. The alternative value, 

the purchase price at which the entity 

purchased the land, would have been at 

most, theoretically, FMV of the land 

without being encumbered by the 

easement. If the original purchase price 

of the property was less than FMV of the 

land encumbered with the easement, 

then ACEP assistance through a BPS 

arrangement is not necessary for the 

entity to have a viable transaction that 

would result in the same outcome and 

could occur without an investment of 

taxpayer funds. 

This requirement ensures that eligible 

entities do not profit from the BPS 

transaction at the cost of the qualified 

farmer or rancher. The provision 

requiring the eligible entity to sell the 

property at the original purchase price, 

if lower than the appraised agricultural 

value, was similarly included to help 

farmers and ranchers gain access to 

affordable farmland. NRCS has clarified 

in the regulation that appraised 

agricultural value means agricultural 

value of the land. An eligible entity 

should seek tax or legal advice if a 

particular transaction, due to the 

entity’s unique circumstances, could 

jeopardize its tax-exempt status. In 

those instances, the entity can move 

forward independently without ACEP 

assistance, especially if the entity would 

make a profit from the subsequent land 

transfer, which would negate the need 

for Federal funds. 

No change is made to the regulation 

in response to this issue. 

Comment: NRCS received comment 

requesting that the pre-closing transfer 

of BPS easements should allow for 

advance payments in addition to 

reimbursements. 

Response: NRCS selected the 

reimbursement-only approach for preclosing BPS transactions as it reduces 

the risk for cost-recovery by allowing 

NRCS and the entity to ensure the 

transaction meets all requirements prior 

to NRCS providing cost-share 

assistance. To ensure this risk is 

minimized across all BPS transactions, 

NRCS has clarified that payment of the 

Federal share will occur on a 

reimbursable basis for all BPS 

transaction types. Even under standard 

(non-BPS) ALE transactions, an advance 

payment may only be issued 30 days 

prior to closing. Therefore, the amount 

of time the eligible entity could be in 

receipt of easement funds in advance of 

the easement closing under the 

requested approach is minimal, whereas 

the reimbursement-only approach for 

BPS transactions significantly reduces 

risk and increases administrative 

savings for both the eligible entity and 

the Government. The regulation has 

been updated to make the Federal share 

payment provision more consistent 

across the BPS transaction types. 

Comment: NRCS received comment 

related to adjusted gross income (AGI) 

waivers; two comments suggested 

adding AGI waivers for entities involved 

in BPS transactions who play an 

intermediary role as landowner. 

Another comment suggested 

automatically waiving AGI for BPS 

transactions because entities only act as 

pass-through organizations for the 

purpose of the contract. 

Response: The requesting and 

granting of AGI waivers for landowners 

that the Farm Service Agency (FSA) has 

determined do not meet the AGI 

limitations must ultimately be 

addressed prior to providing ACEP 

funds. Determinations to waive AGI for 

landowners that do not meet the AGI 

limitations, as set forth in 7 CFR part 

1400, must be based on a case-by-case 

basis. NRCS policy addresses when 

NRCS makes its eligibility 

determinations, including AGI, based on 

the BPS transaction type and provides 

maximum flexibility with respect to the 

timing of conducting AGI 

determinations. No change is made to 

the regulation in response to this issue. 

Comment: NRCS received comment 

regarding the length of ACEP–ALE 

agreements for BPS transactions, 

including request for an extension 

beyond the 3-year ACEP–ALE 

agreement length (and 12-month 

extension) for post-closing transfers to a 

qualified buyer or an extension to a 5- 

year agreement length. 

Response: NRCS provides a period of 

3 years, plus a potential additional 12 

months, to find a qualified buyer, in 

addition to the initial 2-year period 

provided to close on the easement, for 

a total of 6 years for an individual 

transaction. NRCS selected the 12- 

month extension for several reasons, 

largely based on the administrative 

burden associated with extending 

transactions further. 

Additionally, NRCS recognizes that 

post-closing BPS transactions compete 

for the same ACEP funds that otherwise 

would be available to protect land that 

is already owned by a private or Tribal 

landowner or qualified farmer or 

rancher. Under a post-closing BPS 

transaction, until transfer to a qualified 

farmer or rancher takes place, the 

intended purposes of ACEP for which 

the Federal funds have been invested, 

are not fully realized. If the property is 

not ultimately transferred, then those 

Federal funds have been rendered 

unavailable for 5 to 6 years during 

which time they could have been used 

to protect another property that may 

have met ACEP purposes from the 

outset. Twelve months was chosen to 

ensure appropriate stewardship of 

Federal funds. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

requesting addition of an option to 

purchase at agricultural value (OPAV) 

for BPS agreements to maintain 

maximum flexibility. 

Response: Encumbered land under a 

BPS transaction must be sold at 

agricultural value to a qualified farmer 

or rancher. The ACEP statute at 16 

U.S.C. 3865b(b)(4)(D)(i) specifically 

allows the inclusion of additional deed 

terms to keep the land subject to the 

ALE under the ownership of a farmer or 

rancher, which includes easement deeds 

that are part of a BPS transaction. 

However, NRCS must provide oversight 

to ensure that the use of an OPAV term 

in BPS transactions does not create an 

incentive for strawman sales to a 

qualified farmer or rancher just to meet 

statutory BPS requirements and then 

have the qualified farmer or rancher sell 

the land immediately back to the entity 

at agricultural value under the OPAV 

term. No change is made to the 

regulation in response to this issue. 


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Comment: NRCS received comment 

recommending modification of the 

penalty for failure to complete BPS 

transactions to a sliding scale of 

restitution rather than full repayment. 

Response: The ACEP statute requires 

that the ‘‘Secretary shall be reimbursed 

for the entirety of the Federal share of 

the cost of the agricultural land 

easement by the eligible entity if the 

eligible entity fails to transfer 

ownership.’’ NRCS does not have any 

flexibility with respect to the level of 

restitution and therefore no change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

requesting that eligibility for BPS 

transactions be expanded to include 

land owned by State and local 

governments. 

Response: The statute identifies 

‘‘eligible land’’ as ‘‘private or tribal 

land,’’ which land owned by a State or 

local government is not. However, this 

limitation does not preclude the 

involvement of a State or local 

government in a BPS transaction. A 

state or local government can serve as 

the interim easement holder while a 

non-governmental-eligible entity serves 

as the landowner until the land can be 

transferred to a qualified farmer or 

rancher. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

requesting that, in the development of 

its policy for BPS transactions, the 

entity not be required to identify the 

landowner or sale price during the 

application and agreement phase. 

Response: NRCS does not require the 

identification of the landowner or sale 

price during the application phase. The 

timing of the identification of the 

landowner and the sale price is 

specified in the ALE-agreement terms 

and based on the specific BPS 

transaction type as either a pre-closing 

or post-closing transfer. No change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

requesting that land eligibility 

provisions be changed for BPS 

transactions, including removal of the 

‘‘imminent threat’’ test example or 

addition of ‘‘advancing program goals’’ 

as a basis for eligibility. 

Response: To align with the 

‘‘Conference Report to Accompany H.R. 

2—Agriculture Improvement Act of 

2018’’ (Managers’ Report), the ACEP– 

ALE ‘‘eligible land’’ definition for BPS 

transactions was modified to ‘‘allow for 

agricultural land to be owned by an 

eligible entity on a transitional basis to 

qualify for program participation, 

provided that the land subject to the 

agricultural land easement be 

transitioned to farmer or rancher 

ownership within 3 years.’’ Due to the 

transitional nature of this ownership, 

there are risks that the Federal 

investment in ACEP–ALE benefits will 

not be fully realized, risks that do not 

exist with standard ALE transactions. 

However, in some circumstances, such 

as an imminent threat of development, 

this risk is outweighed by the benefit of 

placing an easement on land not owned 

by an otherwise eligible private or 

Tribal landowner at the time the Federal 

funds are invested in the easement. 

NRCS therefore states in the ACEP 

regulation that, to be eligible for a BPS 

transaction, the land must be subject to 

conditions that necessitate the 

ownership of the parcel by the eligible 

entity on a transitional basis prior to the 

creation of an agricultural land 

easement, and that these conditions may 

include land subject to an ‘‘imminent 

threat of development, including, but 

not limited to, planned or approved 

conversion of grasslands to more 

intensive agricultural uses.’’ Other 

conditions may also satisfy that 

requirement. NRCS made a slight 

editorial clarification in the regulation 

with respect to the requirement that the 

eligible entity must, within 12-months 

of the BPS agreement, have completed 

the initial purchase of the land or have 

demonstrated that completion of the 

purchase of the land is imminent. 

No other change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

on the issue of merger of title in BPS 

transactions, including comment 

recommending deed term stating merger 

does not apply. Another comment 

encouraged NRCS and Office of the 

General Counsel to rely on an opinion 

of counsel eligible to practice in the 

State in which the ALE project is 

located to the effect that no merger 

would result through the transaction if 

the eligible entity: (1) Developed strong 

anti-merger language to allow it to grant 

an agricultural land easement to itself 

while still holding the fee title to the 

property, and then (2) reaffirmed the 

agricultural land easement at the time 

the eased parcel is sold to a farmer or 

rancher. 

Response: ACEP–ALE is a nationwide 

program and State law varies on the 

effectiveness of an anti-merger clause; 

however, in general, entities may 

include a no merger clause in ALE 

deeds. However, NRCS does not believe 

that the combination of an anti-merger 

clause with the suggested attorney’s 

opinion sufficiently allows an eligible 

entity to temporarily hold the easement 

and the underlying fee at the same time. 

NRCS contemplated this proposed BPS 

transaction structure in response to 

previous public comments. The 

comment received does not introduce 

new information resulting in a different 

determination with respect to the legal 

issues of easement creation, as an 

easement, by definition, are the rights 

held by someone in the land owned by 

another and is created at the time of the 

transfer to the other person. 

The article supplied by the 

respondent reaffirmed this concept by 

identifying cases where courts 

determined that the doctrine of merger 

was not applicable due to the transfer of 

an easement to a third party. Merger of 

title addresses the extinguishment of an 

easement right due to a subsequent 

acquisition of fee title, while the BPS 

transactions present issues of easement 

creation. In addition to these issues, the 

conflict of interest inherent in this type 

of ownership scenario, which would 

impact enforcement, monitoring, and 

management of the easement and 

property, would not be mitigated by 

including an anti-merger provision. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

that parcel substitutions for BPS 

transactions should be allowed. 

Response: Due to the unique and 

complex nature of BPS transactions, the 

ALE agreement includes terms that are 

specific to the individual transaction 

and ultimately constitute the ‘legal 

arrangement’ being entered into ‘relating 

to land owned . . . by an eligible entity’ 

for the purchase of an agricultural land 

easement on that particular piece of 

land. In contrast, the terms of the 

standard ALE agreement and contract 

appendix are applied universally to 

every parcel funded. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

recommending that changes to 

transaction type (pre-closing versus 

post-closing transfer) be allowed after 

entering into agreement. 

Response: NRCS identified two types 

of BPS transactions in the interim rule: 

pre-closing and post-closing transfers, 

which are differentiated based on the 

timing of the sale of the fee title interest 

in the land to a qualified farmer or 

rancher relative to the timing of 

securing the agricultural land easement. 

The regulation specifies the 

requirements and ALE-agreement terms 

that apply to both types. NRCS will 

address in the terms of the ALE 

agreement how an eligible entity may 

request a modification to an ALEagreement to change between these two 

types of BPS transactions. No change is 


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made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

requesting clarification in the preamble 

as to whether a qualified farmer or 

rancher includes those who do not file 

a Schedule F, such as a farmer in an S 

corporation. 

Response: IRS Form 1040 or 1040–SR, 

Schedule F, ‘‘Profit or Loss from 

Farming,’’ is the preferred 

documentation and is consistent with 

other NRCS and USDA programs. 

However, NRCS will also consider 

circumstances in which other forms of 

IRS documentation identifying the 

landowners’ engagement in an 

agricultural operation may be 

appropriate. 

ALE Contribution Requirements 

Under both the 2014 and 2018 Farm 

Bills, NRCS may provide a Federal share 

that does not exceed 50 percent of the 

FMV of the agricultural land easement 

and requires the eligible entity to 

provide a share at least equivalent to 

that provided by NRCS, except in the 

case of grasslands of special 

environmental significance. For 

grasslands of special environmental 

significance, NRCS may provide a 

Federal share that does not exceed 75 

percent of the easement FMV and the 

non-Federal share requirement is 

adjusted accordingly. The 2018 Farm 

Bill removed the 50-percent cash 

contribution requirement on the part of 

the eligible entity and identified 

permissible sources of the non-Federal 

share. NRCS received the following 

comments. 

Comment: NRCS received comment in 

support of removing the requirement for 

the eligible entity to provide a minimum 

cash contribution toward the purchase 

of the agricultural land easement and 

allowing donations of land by the 

landowner and eligible entity expenses 

for procured items to satisfy the nonFederal share requirements. Other 

comments did not support eligible 

entities no longer being required to 

provide a minimum cash contribution. 

Response: The regulatory changes 

follow requirements of the 2018 Farm 

Bill. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

suggesting changes to how NRCS 

structured the non-Federal share in the 

regulation. They asked that the ‘‘and’’ at 

the end of the list be replaced with an 

‘‘or.’’ 

Response: NRCS is clarifying that the 

sources comprising the non-Federal 

share are listed in order, and proceeding 

through the list, once the minimum 

non-Federal share amount is met, 

additional sources and amounts do not 

need to be identified. 

Additionally, given that an eligible 

entity’s contribution may be related to 

cash resources expended for the 

purchase of the land prior to the 

easement transaction, NRCS has 

clarified in the regulation that for BPS 

transactions, part of the non-Federal 

share provided by an eligible entity may 

include that portion of the fair market 

value of the agricultural land easement 

that is not provided as the Federal 

share. 

Comment: NRCS received comment 

requesting clarification about the timing 

and the type of documentation that 

would be required for procured costs 

incurred by the eligible entity if relied 

upon to meet the non-Federal share 

requirement. 

Response: The regulation states that 

documentation requirements for 

procured costs are included in the ALE 

agreement. NRCS recognizes that, at the 

time of agreement, costs for procured 

items are estimated amounts and have 

not yet been incurred. Such estimates 

are needed in order to calculate the 

amount of the Federal share that may be 

obligated. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

requesting that baseline reports and 

mineral assessments be added to the list 

of procured costs that may be included 

in the non-Federal share. 

Response: NRCS added baseline 

reports and mineral assessments to the 

list of items that may be included in the 

non-Federal share if these items are 

procured by the eligible entity from 

third parties. 

Comment: NRCS received comment 

asking that a Federal share of up to 75 

percent of easement costs be provided 

in communities that do not have eligible 

entities present. 

Response: The statute limits NRCS’s 

authority to provide a Federal share of 

up to 75 percent of the easement value 

to grasslands of special environmental 

significance only. No other types of 

transactions are authorized to receive up 

to 75 percent of the easement value, 

including transactions that occur in 

communities that do not have an 

eligible entity present. No change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

requesting a change to clarify that the 

non-Federal share provided by the 

eligible entity for ACEP–ALE grasslands 

of special environmental significance 

must comprise the difference between 

the Federal share and the remainder of 

the FMV. The comment requested 

removal of the provision that, in the 

event the non-Federal share provided by 

the eligible entity is less than such 

amount, NRCS will provide a Federal 

share equivalent to the non-Federal 

share being provided. 

Response: The interim rule mirrors 

the statute. Additionally, the language 

allows for the possibility that, in the 

event that the non-Federal share 

provided by the eligible entity does not 

comprise the difference between the 

Federal share and the remainder of the 

FMV of the easement, NRCS could still 

provide a lesser amount that is 

equivalent to the non-Federal share. 

Although this is unlikely, removing the 

language from the regulation would 

eliminate this possibility. No change is 

made to the regulation in response to 

this issue. 

ALE Deed Requirements and Terms 

NRCS received comment related to 

the topic of ALE deed requirements and 

deed terms as follows: 

Comment: NRCS received comment 

related to the ALE deed template 

review, recommending that the deed 

template review be limited to ensuring 

that the minimum deed terms are 

incorporated and that other terms are 

not contrary to the purpose of ACEP. 

Response: The NRCS review of ALE 

deed templates focuses on ensuring that 

minimum deed terms (MDT) are 

incorporated and ensuring other terms 

are not contrary to the purpose of the 

program. Review of other items may be 

necessary to ensure that the document 

will work effectively as a template for 

the acquisition of agricultural land 

easements on multiple parcels. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

about deed provisions related to 

agricultural use, including a request to 

strike the phrase ‘‘consistent with 

agricultural use’’ and replace it with the 

phrase ‘‘does not negatively affect 

agricultural use’’ as to commercial uses. 

Another comment recommended that 

NRCS limit its ability to impose greater 

deed restrictions in instances where the 

State definition of agricultural uses may 

result in the degradation of the soils, 

agricultural nature of the land, or 

related natural resources. 

Response: This phrase ‘consistent 

with agricultural use’ is unchanged from 

the previous ACEP regulation and is 

expansive enough to apply to farmland 

and grassland enrollments and is 

sufficient to prevent commercial uses 

that may negatively affect agricultural 

uses. NRCS may impose deed 

restrictions needed to ensure ACEP– 

ALE purposes will be met in exchange 

for the Federal investment. No change is 


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made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

expressing general support for various 

elements of the deed requirements set 

forth in the interim rule, including 

commending NRCS for the revised 

mineral development language; 

language regarding an entity’s use of 

their own deed terms and conditions; 

and supporting the U.S. right of 

enforcement and right of inspection 

language in the interim rule. 

Response: NRCS thanks respondents 

for their input. No change is made to the 

regulation in response to these issues. 

Comment: NRCS received comment 

related to amendment clauses that must 

be included in each agricultural land 

easement deed, recommending splitting 

the amendment provision in the 

regulation to avoid confusion between 

‘‘amendments’’ and the various types of 

easement administration actions 

(subordination, modification, exchange, 

and termination actions). 

Response: NRCS appreciates the 

request for clarification regarding the 

requirement that each agriculture land 

easement deed include clauses that 

address amendments or changes that 

may occur after recordation of the 

easement. To clarify, NRCS uses the 

term ‘‘amendment’’ in the regulatory 

deed requirement in § 1468.25(d)(4) 

broadly to include each type of 

easement administration action: 

Subordination, modification, exchange, 

and termination. In practice, NRCS 

provides two separate clauses in the 

minimum deed terms to address this 

regulatory deed requirement and fully 

encompass the various types of 

easement administration actions. NRCS 

revised the text in the final rule to 

clarify and remove ambiguity regarding 

the various types of changes to the 

easement deed or easement area that 

must be approved in advance by NRCS. 

Comment: NRCS received comment 

regarding the interim rule’s impervious 

surface limitations that must be 

specified in ACEP–ALE easement deeds, 

including comments recommending that 

NRCS authorize a blanket impervious 

surface waiver to ACEP–ALE easement 

deed language and cap the waiver 

authority at 5 percent of the easement 

area. 

Response: The impervious surface 

limitation and the current cap are wellestablished. NRCS explained in prior 

rulemakings the basis for its use of a 

2-percent limitation and the flexibility 

of having a waiver that allows up to 10 

percent based upon site-specific factors. 

In particular, this limitation provides a 

reasoned balance between ensuring the 

future capacity of agricultural land use 

with flexibility to allow for changes to 

the agricultural operation. 

NRCS requires a parcel-by-parcel 

determination because impervious 

surface limitations are site-specific. 

NRCS will not approve a blanket waiver 

or grant eligible entities a right to create 

blanket waivers for a greater impervious 

surface limit. 

However, there is an existing waiver 

option available that may have been 

underutilized. Specifically, when an 

eligible entity has a waiver process 

consistent with NRCS limitations and it 

is based on parcel-by-parcel 

determinations made by the entity, the 

entity may request authority from NRCS 

to use its own process. In this case, 

separate individual parcel waivers from 

NRCS would not be necessary. 

No change is made to the regulation 

in response to this issue. 

Comment: NRCS received comment 

regarding the subsurface mineral deed 

provisions. The comments requested: 

• A requirement that native plants be 

used to remediate subsurface mining 

impacts; 

• A requirement that involves State 

technical committees when determining 

impact of mineral development; 

• That NRCS seek guidance on timing 

and responsibility for the development 

of the subsurface development plan; and 

• That NRCS provide flexibility in the 

identification of de minimis gravel 

extraction sites. 

Response: NRCS recognizes the 

preference for the use of native plants 

for remediating sites in general, but the 

determination of the appropriate 

vegetation for any particular easement 

must be based upon site-specific factors. 

While the State technical committee 

can provide input on the impact of 

mineral development to particular land 

uses or locations in the State, such input 

would be inappropriate on an 

individual easement basis. 

The eligible entity is responsible for 

providing the subsurface mineral 

development plan to NRCS, which must 

be approved by NRCS prior to initiation 

of the mineral development activity, as 

set forth in § 1468.25(d)(7)(v). 

The de minimis gravel extraction 

matter is not a regulatory issue but the 

comment responds to text that exists in 

the current minimum deed terms. 

NRCS would like to clarify that de 

minimis gravel extraction is through 

surface methods and therefore not 

encompassed by the subsurface mineral 

deed. Additionally, the current 

minimum deed terms authorize such de 

minimis gravel extraction for on-farm 

purposes. No change is made to the 

regulation in response to these issues. 

Comment: NRCS received comment 

recommending that certified entities 

need not be required to seek NRCS 

approval for subdivision and other 

activities that currently require NRCS 

approval under regulatory deed 

requirements and allow only notice to 

NRCS of these actions as sufficient. 

Response: The interim rule language 

did not change from prior rules. 

Certified entities have broad discretion 

already but still must meet regulatory 

deed requirements. NRCS, as a 

fiduciary, must approve those actions 

that can so fundamentally affect 

program purposes. 

Comment: NRCS received comment 

with respect to the requirement of the 

United States right of enforcement in 

the agricultural land easement deed, 

including request that a reference to 

§ 1468.28 be added to the right of 

enforcement definition, 

recommendation that the word 

‘‘contingent’’ should be inserted before 

the term ‘‘United States right of 

enforcement’’, and a statement that the 

right of enforcement does not include 

the ability of the NRCS enforce the 

terms of an ALE plan if such a plan 

exists. 

Response: NRCS removed the term 

‘‘contingent’’ many years ago to remove 

confusion that such right is a currently 

vested right. The term ‘‘contingent’’ 

indicates that NRCS’s exercise of its 

right of enforcement is conditioned on 

particular events. It does not mean that 

the right itself is contingent, such that 

it would only be vested upon some 

future event. 

NRCS has not included any cross 

references to the various sections which 

relate to the United States right of 

enforcement in the definition itself 

since such cross-referencing is 

unnecessary. 

Agricultural land easements acquired 

under the 2018 Farm Bill are not 

required to have or be subject to an ALE 

plan. NRCS enforces highly erodible 

land conservation plans on highly 

erodible cropland as required by the 

ACEP–ALE statute; however, NRCS 

does not otherwise identify in the 

regulation the enforcement of an ALE 

plan. 

No change is made to the regulation 

in response to this issue. 

Comment: NRCS received comment 

stating that the statutory requirement of 

providing notice and right to participate 

when exercising the right of inspection 

should be added to the rule and deed 

terms. 

Response: The circumstances under 

which NRCS may enter upon and 

inspect an easement pursuant to the 

United States right of enforcement is 


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included in the full right of enforcement 

clause provided to all eligible entities 

and must be used in all ACEP-funded 

agricultural land easement deeds. The 

ACEP regulation clarifies that NRCS 

will provide the agricultural land 

easement holder and the landowner a 

reasonable opportunity to participate if 

NRCS exercises its right of inspection. 

Comment: NRCS received comment 

recommending that deed terms should 

allow site potential tree height (SPTH) 

forested riparian buffers as a permissible 

provision in western Washington. 

Response: The ACEP regulation 

includes a ‘‘catch-all’’ provision that 

allows States to have additional 

minimum deed terms. NRCS 

recommends that the commenters and 

any stakeholders with similar concerns 

should work with their applicable State 

Conservationist. No change is made to 

the regulation in response to this issue. 

Comment: NRCS received comment 

related to how the ALE-agreement 

references the deed requirements. 

Response: The ALE agreement must 

specify the deed requirements as set 

forth in the regulation so that they are 

enforceable. 

ALE Entity Certification 

NRCS received comment related to 

ALE entity certification as follows: 

Comment: NRCS received comment 

on the term of agreements with certified 

eligible entities recommending that 

NRCS allow for a minimum 5-year term. 

Response: NRCS is changing the 

regulatory language in response to this 

comment to specify that agreements 

with certified entities will be for a 

minimum of 5 fiscal years following the 

fiscal year the agreement is originally 

executed, but may not exceed 7 fiscal 

years following the fiscal year the 

agreement is originally executed. NRCS 

has found that an upper limit is 

necessary to limit the administrative 

burden associated with implementing 

agreements that cross different farm 

bills. 

Comment: NRCS received comment 

urging NRCS to expand eligibility for 

certification for State agencies, 

recommending a broadening of language 

for which types of prior conservation 

easements would be counted, and 

requesting that NRCS drop the number 

of required prior conservation easement 

transactions from 10 to 5. 

Response: The terms for certification 

of State agencies are set forth in statute, 

including the type of easements that can 

be counted and the number of prior 

transactions required, and NRCS does 

not have discretion to waive or amend 

those provisions. No change is made to 

the regulation in response to this issue. 

Comment: NRCS received comment 

requesting additional guidance on the 

entity certification process, including 

evaluation criteria, how NRCS will 

address partnerships between certified 

and non-certified eligible entities, what 

technical assistance NRCS may provide 

to certified entities (with regards to 

things like title review and appraisal), 

the benefits of certification, and the 

definition of a plan for administering 

easements. The comment detailed 

recommendations about the kind of 

transparency NRCS should have for its 

process and the timeline. Another 

comment requested a streamlined 

process for certifying eligible entities, 

including State agencies and land trusts. 

Response: The internal certification 

review process is found at 440 

Conservation Programs Manual (CPM) 

Part 528 and may be accessed at https:// 

directives.sc.egov.usda.gov/. NRCS will 

continue its ongoing efforts to 

streamline processes through new 

business tools to be as efficient and 

effective in program delivery as possible 

while operating within legal authorities. 

NRCS will continue to make publicly 

available any new policy or guidance. 

No change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

expressing support for changes made in 

the interim rule to the entity 

certification process. 

Response: NRCS appreciates this 

support. 

ALE Land Eligibility Issues 

NRCS received comment related to 

ALE land eligibility as follows: 

Comment: NRCS received comment 

about forest land eligibility issues. Many 

supported maintaining the two-thirds 

limitation on non-industrial private 

forest land (NIPF) eligibility under 

ACEP–ALE and offered that programs 

like the Regional Conservation 

Partnership Program (RCPP), Healthy 

Forests Reserve Program (HFRP), and 

Forest Legacy Program can all be used 

currently to protect forest lands. 

Another comment requested the twothird limitation on NIPF in ACEP–ALE 

be struck. 

Response: To minimize duplication, 

overlap, and conflict with other USDA 

forest easement programs, the interim 

rule and this regulation maintain the 

existing eligibility provision that land 

enrolled in ACEP–ALE cannot include 

NIPF greater than two-thirds of the 

ACEP–ALE easement area unless 

waived by NRCS with respect to forest 

lands dedicated to sugar bush that 

contribute to the economic viability of 

the parcel. 

NRCS specifically requested public 

comment in the interim rule on whether 

RCPP or HFRP could protect lands on 

which NIPF is the predominant use at 

levels beyond the scope of ACEP–ALE. 

Regarding the two-third limitation, 

NRCS cannot authorize parcels that are 

100 percent NIPF because statutory 

eligibility criteria is phrased as NIPF 

contributing to the economic viability of 

an offered parcel or serving as a buffer 

to protect land from development. Thus, 

the eligibility of NIPF is in relationship 

to other eligible land. This has long 

been NRCS’s interpretation of this 

eligibility criterion under ACEP–ALE 

and its predecessor Farm and Ranch 

Lands Protection Program. Congress 

specifically rejected language that 

would have expanded eligibility in the 

2018 Farm Bill. NRCS concurs that the 

availability of other USDA easement 

programs that specifically protect 

forested lands warrants the continued 

focus of ACEP–ALE more broadly on 

other agricultural lands. No change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

about the definition of grasslands of 

special environmental significance 

(GSES) under ACEP–ALE, including 

support for the definition of GSES and 

the prioritization and management of 

native vegetation and habitats in 

relationship to GSES. A comment also 

encouraged the return of land to 

heritage marshes and vernal pools 

wherever possible on GSES enrollments. 

Another comment supported allowing 

only native vegetation to be categorized 

as GSES. 

Response: NRCS believes that the 

current GSES definition supports the 

recommendation about prioritization of 

native vegetation and habitat. In 

particular, the GSES definition 

identifies sensitive or declining native 

prairie or grassland types or grasslands 

buffering wetlands. However, there are 

grasslands that, while not native 

vegetation, provide critical habitat for 

at-risk species that warrant the 

increased Federal investment to protect. 

Thus, NRCS will not limit GSES to 

native vegetation only. No change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

related to ALE land eligibility, 

including: 

• A request that confined animal 

feeding operations (CAFOs) not be 

eligible for an ALE-funded easement; 

• A comment addressing the 

ineligibility criteria related to on-site 

and off-site conditions; 

• A comment commending NRCS for 

including criteria related to permitted 


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rights-of-way and requesting that NRCS 

clarify how off-site conditions are 

deemed suitable for the purpose of 

making ALE land eligibility 

determinations; 

• A comment requesting that NRCS 

broaden the definition of access and the 

eligibility requirements so that air 

access can qualify; and 

• A comment requesting additional 

clarification as to whether a farmer or 

rancher can participate in both ALE and 

Conservation Reserve Program (CRP). 

Response: For any proposed easement 

containing a CAFO, the confined area is 

a heavy use area that must be evaluated 

by NRCS to determine if the on-site or 

off-site conditions render the site 

ineligible and make a determination as 

to whether the land meets the required 

land eligibility criteria. This is a casespecific determination and broad 

categorization of land eligibility simply 

based on type of operation is not 

appropriate. NRCS has set forth in 

national policy, which is publicly 

available, the procedures and forms 

NRCS uses to make land eligibility 

determinations for ACEP–ALE, 

including assessing the potential of 

onsite and offsite conditions to 

undermine the purposes of ACEP. 

Ultimately, land eligibility 

determinations are site-specific and rely 

upon programmatic and technical 

assessments based on criteria set forth 

broadly in national policy and more 

specifically at the State level. For more 

information, see: 440 CPM part 528 at 

https://directives.sc.egov.usda.gov/. 

Legal access to agricultural land 

easements is critical to the ability of the 

eligible entity, and NRCS, under its 

right of enforcement, to monitor and 

enforce the terms of the easement and 

ensure that program purposes are 

achieved. Effective monitoring and 

enforcement ultimately require ground 

inspection and verification. Access to an 

easement that can only be achieved by 

aircraft would require both the eligible 

entity and NRCS to maintain, in 

perpetuity, aircraft that can provide 

personnel access to monitor and land on 

the easement property and would 

require the landowner to maintain, in 

perpetuity, a landing strip or helipad on 

the property. NRCS does not maintain 

its own aircraft for easement monitoring 

purposes and cannot evaluate the safety 

and suitability of aircraft owned by the 

eligible entity or the landowner’s 

landing strip or helipad. All lands that 

do not have sufficient legal, physical 

access are ineligible to receive Federal 

funds under ACEP, including those that 

are only accessible by air. 

The 2018 Farm Bill specifies that a 

farmer or rancher who owns eligible 

land subject to an agricultural land 

easement may enter into a CRP contract. 

Determinations of land eligibility for 

enrollment in CRP are under the 

purview of FSA and we have therefore 

shared the comment with FSA. No 

change is made to the regulation in 

response to these issues. 

ALE Planning 

NRCS received comment related to 

ALE planning and ALE plans as follows: 

Comment: NRCS received comment 

related to ALE planning generally and 

some of them urging NRCS to require a 

grassland management plan for 

grasslands of special environmental 

significance given the higher 

environmental value of these easements. 

Another comment recommended that 

NRCS continue to encourage planning 

on ALE easements, while a comment 

did not support how NRCS encouraged 

planning. 

Response: The 2018 Farm Bill 

removed language requiring that ACEP– 

ALE easements enrolled under the 2018 

Farm Bill be subject to an ALE plan, 

including grasslands of special 

environmental significance. However, in 

the Managers’ Report, the Managers 

‘‘encourage USDA and eligible entities 

to work with landowners entering into 

an ALE easement to undertake 

conservation planning activities on their 

land in order to maximize the 

environmental value of the protected 

land.’’ Therefore, NRCS will continue to 

encourage planning on ACEP–ALE 

enrollment, including grasslands of 

special environmental significance. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

strongly supporting the recognition ALE 

plan as a measure that maintains or 

increases the agricultural viability of the 

land in the ranking criteria, and 

identified that the ranking criterion 

should strongly weight ALE plans for 

grasslands of special environmental 

significance and that a plan should be 

required for any application that is 

prioritized based on carbon 

sequestration or climate change 

resiliency goals. Another comment 

expressed that an ALE plan should not 

be recognized in the ranking criteria 

because it is no longer required by 

statute. 

Response: As described in the 

preamble of the interim rule, NRCS 

identified that the development and 

maintenance by the eligible entity of an 

ACEP–ALE plan could be a ranking 

consideration at the State level to 

prioritize applications from eligible 

entities. NRCS believes that 

conservation planning is the base upon 

which sound conservation stewardship 

originates. To eliminate support for 

planning would undermine the quality 

of stewardship that would be 

encouraged on lands in which the 

public provides a sizable financial 

investment. Additionally, as a ranking 

criterion this consideration does not 

prohibit eligible entities from being able 

to access program funding but instead 

acknowledges that eligible entities 

committed to long-term conservation 

planning are helping to ensure an 

agricultural land easement yields the 

greatest benefits for the landowner, 

conservation, and the public funds 

invested in that easement. No change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

related to the definition of the ALE plan, 

with some advocating for the removal of 

the ALE plan definition entirely because 

plans are no longer mandated by statute. 

Another comment supported the 

definition of ALE plans and 

commended NRCS for clearly defining 

that the plan is developed by the 

eligible entity and not as a component 

of the deed. Comment also expressed 

support for limiting conservation plans 

to only highly erodible croplands. 

Response: NRCS supports 

conservation planning as the 

cornerstone of land stewardship efforts. 

NRCS retained the definition of the ALE 

plan in the ACEP regulation. No change 

is made to the regulation in response to 

this issue. 

ALE Program Requirements 

NRCS received comment related to 

ALE program requirements as follows: 

Comment: NRCS received comment 

requesting clarification as to how NRCS 

will determine if a landowner entity is 

compliant with AGI. 

Response: NRCS uses the AGI 

eligibility determinations made by the 

FSA. NRCS accesses such 

determinations through the agencies’ 

shared database services. No change is 

made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

related to the requirement that eligible 

entities must provide evidence of their 

financial capacity for transactions in 

which the non-Federal share does not 

include at least a 10-percent cash 

contribution from the eligible entity for 

payment of easement compensation to 

the landowner. Other comment 

requested removal of the requirement 

that the entity provide specific evidence 

of funds available for stewardship of the 

easement and suggested that entity 

eligibility requirements that apply to all 

ACEP–ALE transactions regardless of 


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entity cash contribution amounts are 

sufficient. Other comment commended 

NRCS on including the requirement but 

requested clarification as to what would 

constitute specific evidence of funds 

available for stewardship. 

Response: All entities must 

demonstrate capability and capacity as 

an eligibility requirement. Under the 

2014 Farm Bill, NRCS could use an 

entity’s ability to provide at least the 

required cash contribution amount for 

all ACEP–ALE transactions as an 

indication that the entity is able to meet 

capability and capacity requirements. 

Where an entity is unable to provide at 

least a minimum cash contribution, 

questions arise as to the entity’s 

financial capacity to assume 

responsibility for the easement 

acquisition. NRCS has, therefore, 

specified in the regulation the 

conditions under which additional 

capability and capacity evidence will 

always be required. However, it is 

always the entity’s responsibility to 

establish that it meets basic ACEP–ALE 

eligibility requirements and as 

identified in the rule, the entity must 

provide to NRCS sufficient information 

to establish that the applicable entity 

eligibility criteria have been met. 

Comment: NRCS received comment 

recommending that the definition of a 

farm or ranch succession plan be 

expanded to include transfers of land 

and deeds to non-relatives and other 

long-term protections for agricultural 

productivity. Also, comment 

recommended specifying that 

successions plans may include options 

to purchase at agricultural value or 

preemptive purchase rights. 

Response: The key part of a 

succession plan is that the landowner 

makes arrangements for the future 

management of the land as a farm or 

ranch once the landowner retires or 

dies. NRCS does not limit those types of 

arrangements. The definition of the 

succession plan in the regulation used 

intra-family succession agreements or 

business asset transfer strategies as 

examples. NRCS has added language to 

clarify that the examples included in the 

definition are not all-inclusive. 

Comment: NRCS received comment 

related to the easement valuation 

methods available under ACEP–ALE, 

encouraging NRCS to provide guidance 

on information required for easement 

valuation methods used other than the 

Uniform Standards of Professional 

Appraisal Practice (USPAP) appraisals, 

including areawide market analysis or 

other industry-approved methods. 

Comment also expressed support for the 

current availability of ACEP–ALE 

valuation options beyond USPAP 

appraisals. 

Response: NRCS provides guidance in 

policy with respect to what is required 

if an eligible entity elects to use an 

alternative easement valuation 

methodology, including a ‘‘Specification 

and Scope of Work for Areawide Market 

Analysis for ACEP–ALE.’’ These items 

are published and publicly available in 

NRCS directive Title 440, Conservation 

Programs Manual (440–CPM), Part 528, 

Section 528.53, and in 440–CPM, Part 

527, Subpart E, which can be accessed 

on the NRCS Electronic Directives 

system at https://

directives.sc.egov.usda.gov/. No change 

is made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

recommending that NRCS be required to 

consult with the State technical 

committee on ACEP–ALE prioritization 

for ranking, special eligibility, and all 

other State-decided criteria. 

Response: Statutory authority states 

that State technical committees assist in 

implementation and technical aspects of 

conservation programs under Title XII 

of the Food Security Act, such as ACEP. 

Sections 1468.2 and 1468.22 of the 

ACEP interim rule incorporate this role, 

including that State technical 

committees provide input on the 

development of ranking criteria and 

other matters. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

related to the ACEP–ALE application 

process and the new option for ALEprogram agreements, requesting that 

NRCS make the application form and 

new option for ALE-program agreements 

form more usable and that the process 

be streamlined. Other comments wished 

to have greater guidance about how 

producers could participate and 

supported the new ALE program 

agreement option and requested 

additional clarification regarding its 

availability. 

Response: NRCS appreciates the 

complexity of easement transactions, 

including the extent of information that 

must be collected from applicants and 

participants on various program forms. 

NRCS has made several efforts to 

streamline the ACEP–ALE enrollment 

process. In FY 2020, NRCS released 

various new or updated forms used to 

administer ACEP–ALE. Additionally, 

NRCS piloted in fiscal year 2019 and is 

implementing more widely in fiscal year 

2020 the use of ALE program 

agreements, making available several 

automated eligibility and payment 

processes previously only available to 

NRCS financial assistance programs. 

Also, the use of a program agreement 

framework under ACEP–ALE allows 

NRCS and eligible entities to more 

easily address enrollment changes, such 

as parcel substitution or acreage 

modifications. Since NRCS does not 

receive landowner applications directly 

for ACEP–ALE enrollment, NRCS will 

provide outreach to States to help 

landowners interested in ACEP–ALE 

identify eligible entities in their 

geographic area. No change is made to 

the regulation in response to this issue. 

Comment: NRCS received comment 

recommending that NRCS allow water 

supply entities to participate in ACEP– 

ALE as eligible entities. 

Response: An eligible entity must 

meet the definition of an eligible entity 

established by statute and incorporated 

into the ACEP regulation. NRCS does 

not have authority to expand the basic 

eligible entity definition. No change is 

made to the regulation in response to 

this issue. 

ALE Ranking 

NRCS received comment related to 

ALE ranking as follows: 

Comment: NRCS received comment 

related to removing the factor associated 

with national ranking criterion that 

takes into consideration whether the 

cash contribution is being provided by 

the eligible entity toward the payment 

of easement compensation to the 

landowner. Other comments: 

• Recommended consideration of 

State and local tax incentives be added 

to this factor; 

• Recommended NRCS prioritization 

of landowner donation in the ranking; 

and 

• Agreed with including the eligible 

entity’s cash contribution in the 

ranking. 

Response: The Managers report 

introduced flexibilities to provide better 

access to ACEP in States where 

conservation easement funding is 

limited. The Managers stated that they 

did not intend for NRCS to reject cash 

matches entirely but broadened the 

options available to eligible entities. 

NRCS recognizes that any time the 

eligible entity’s cash contribution is 

reduced, the landowner receives less 

compensation for the sale of an 

easement on their land, which may 

result in ACEP funds being the only 

funds paid to the landowner for the 

easement. Additionally, the increased 

donation by the landowner will 

frequently satisfy the minimum nonFederal share requirement under ACEP– 

ALE. By considering the cash 

contribution as a positive attribute in 

ranking, NRCS is encouraging 

enrollment while ensuring that ACEP is 

implemented equitably. Each State has 


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the ability to calibrate the relative 

importance of cash contributions in the 

prioritization of applications for 

enrollment in that State. No change is 

made to the regulation in response to 

these issues. 

Comment: NRCS received comment 

related to ranking priority for actions 

related to the future, agricultural, and 

long-term viability of enrolled land. 

Comment supported adding information 

to the succession plan portion of the 

ranking, such as specifically identifying 

OPAV, Purchase of Development Rights 

(PDR), and other succession planning 

options that maintain agricultural 

viability or awarding points for 

innovative succession requirements. 

Comment also: 

• Recommended expanding the 

ranking criteria to prioritize 

applications that increase opportunities 

for historically underserved farmers; 

• Supported the maintenance of 

agricultural viability as a ranking 

criterion; including supporting its 

inclusion as both a national and State 

ranking factor; 

• Suggested that such inclusion is 

duplicative; 

• Recommended that agricultural 

viability be included in the national 

ranking criteria; and 

• Recommended that succession 

planning be removed from the ranking 

criteria. 

Response: Based on national and State 

ranking criteria in the ACEP regulation, 

NRCS at the State level develops 

ranking factors and associated weights. 

Broadly identifying State ranking 

criteria in the regulation provides the 

needed flexibility for States to develop 

the specific ranking criteria that best 

address State and local priorities. 

Regarding long-term maintenance of 

agricultural viability, the national 

ranking criteria ensures, consistent with 

the statute, that this criterion is 

considered in every ACEP–ALE 

application by assessing whether a 

succession plan exists. 

The existence of State ranking criteria 

enables States to develop nuanced 

approaches to address long-term 

agricultural viability, which may 

include more specific identification or 

prioritization of certain types of 

succession plans or succession planning 

strategies. NRCS does not wish to limit 

agricultural landowners’ choices or 

restrict who could be involved in 

succession planning. Such specificity is 

not necessary in the regulation itself. 

NRCS includes in the regulatory 

definition of a farm or ranch succession 

plan strategies that create opportunities 

for historically underserved 

landowners. NRCS also includes a State 

ranking criterion related to the 

multifunctional benefits of farm and 

ranch land protection, of which social 

and economic considerations may be 

included. 

No change is made to the regulation 

in response to these issues. 

Comment: NRCS received comment 

about eliminating the potential for 

prioritization of applications for which 

eligible entities agree to use the ACEP– 

ALE minimum deed terms. 

Response: In the interim rule, NRCS 

indicated that it may prioritize 

transactions where an eligible entity 

uses NRCS’s standard set of minimum 

deed terms. This potential prioritization 

also existed for enrollment during the 

2014 Farm Bill and its inclusion as a 

factor in the State’s ranking criteria is at 

the State’s discretion. An eligible 

entity’s use of the standard set of 

minimum deed terms streamlines the 

easement approval process and 

eliminates the need for NRCS review of 

the conservation easement deed for 

individual transactions. The efficiency 

by which easement transactions are 

completed, including the use of 

available administrative streamlining 

options, is an appropriate consideration 

in ranking, and no change was made in 

this final rule. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

related to the State ranking criteria for 

multifunctional benefits for the 

protection of a particular farm or ranch, 

recommending that NRCS at the State 

level have the option to specify ‘other 

related conservation benefits’ under this 

multifunctional benefits criterion. 

Comment also recommended adding 

‘species of economic significance’ to the 

consideration for at-risk species 

protection under this ranking criterion. 

Another comment recommended the 

criteria be ‘other related benefits,’ 

striking ‘conservation’ from the 

consideration, and other comments 

recommended that NRCS add ranking 

criteria about related conservation 

values. 

Response: NRCS agrees that 

evaluating the multifunctional benefits 

that may result from parcel protection is 

an important prioritization criterion. 

NRCS has enumerated in the regulation 

some potential benefits that may be 

considered and has included ‘other 

related conservation benefits’ to provide 

States with the flexibility to identify 

such conservation benefits and establish 

the associated ranking factors and 

priorities. NRCS believes the State 

ranking criterion is sufficiently 

expansive for NRCS to tailor ranking 

factors at the State and local level. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

and appreciation related to various State 

ranking criteria, including requesting 

that NRCS provide specific references to 

geographic differences for States to use 

in ranking. Other comment stated that 

prioritizing land in areas zoned for 

agricultural use may inadvertently 

exclude agricultural lands. Comment 

also recommended that protection of 

native prairie and other native habitats, 

including protection or improvement of 

habitat for pollinators, be added to the 

State ranking criteria related to the 

diversity of natural resources to be 

protected or improved, and requested 

that riparian buffers be ranked as the 

highest ACEP–ALE priority. 

Response: NRCS believes that the 

regulation provides a sufficient 

framework under which the various 

items brought forth in these comments 

can all be addressed at the State level 

with input from the State technical 

committee. No change is made to the 

regulation in response to these issues. 

Comment: NRCS received comment 

related to various national ranking 

criteria. One comment indicated that it 

is contradictory to limit forest land 

enrollment to two-thirds of an easement 

area while also having the extent of 

forestland as part of a ranking criterion. 

Another comment encouraged NRCS to 

clarify in the regulation that it will use 

the ‘median’ county average farm size 

and requested higher priority be given 

to parcels adjacent to existing easements 

or protected areas. 

Response: Comment related to forest 

lands refers to the national ranking 

criteria for the percent of cropland, 

rangeland, grassland, historic grassland, 

pastureland, or nonindustrial private 

forest land permitted in a protected 

parcel. Each State is able to tailor the 

specific ranking factor to prioritize 

enrollment of land that contains the 

amounts and types of land and 

agricultural uses that are most at risk in 

their State. For example, a western State 

may establish the ranking factor to 

prioritize parcels with a larger 

percentage of historic grassland since 

those lands may be at the greatest risk 

of conversion. In contrast, a midwestern 

State may prioritize the percentage of 

cropland in a parcel since those lands 

may be at the greatest risk of conversion. 

Comment regarding median county 

average farm size refers to the national 

ranking criteria that considers the ratio 

of the size of the parcel compared to the 

average farm size in the county. As 

identified in the regulation, the USDA 

Census of Agriculture is the data source 

for this national ranking criterion; the 


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term ‘average size of farm’ is contained 

in the Census. Based on ALE 

application and enrollment data, use of 

this nationally available data item 

continues to be appropriate. NRCS 

affirms that proximity to other protected 

lands continues to be one of the national 

ranking criteria set forth in the 

regulation. 

No change is made to the regulation 

in response to these issues. 

Comment: NRCS received comment 

recommending that NRCS allow ACEP– 

ALE eligible entities to participate in 

State technical committee 

recommendations for ACEP–ALE 

ranking determinations. 

Response: Eligible entities may 

participate in the State technical 

committee; however, they may not 

participate in developing ranking factors 

for programs in which they participate. 

If potential participants had input into 

ranking factors, NRCS selection 

decisions would be suspect. NRCS will 

provide training to State offices 

describing the roles of eligible entities. 

No change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

supporting various aspects of the ACEP– 

ALE ranking provisions, including: 

Commending NRCS for not using cost as 

a ranking criterion; commending 

NRCS’s consideration of proximity to 

other protected land as a ranking 

criteria; and commending the 

straightforward implementation of 

ranking that allows States to prioritize 

parcels through ranking criteria. 

Response: NRCS appreciates the 

comments. 

Comment: NRCS received comment 

recommending landowners who have 

protected their land through ACEP–ALE 

receive priority for funding under 

NRCS’ financial assistance programs, 

such as the Environmental Quality 

Incentives Program (EQIP). 

Response: NRCS receives input on 

program priorities, including priorities 

for enrollment in its financial assistance 

programs, from the State technical 

committees. There is no need to identify 

priorities for other programs’ enrollment 

in the ACEP regulation. No change is 

made to the regulation in response to 

this issue. 

Definitions 

NRCS received comment related to 

the definitions in the ACEP interim rule 

as follows: 

Comment: NRCS received comment 

related to the terms ‘‘future,’’ 

‘‘agricultural,’’ and ‘‘long-term’’ with 

respect to the term ‘‘viability.’’ 

Comment recommended that greater 

consistency be applied throughout the 

final rule for the three terms with 

respect to the term ‘‘viability;’’ the 

definition of ‘‘agricultural viability,’’ as 

referenced in the Managers’ Report 

language, be clarified; and various items 

be added to, or deleted from, the 

definition of ‘‘future viability.’’ 

Response: Since the creation of ACEP 

in the 2014 Farm Bill, the statute uses 

the phrase ‘‘agricultural use and future 

viability’’ in the program purposes 

statement. In response to comments on 

the February 2015 ACEP interim rule, 

NRCS included a definition of ‘‘future 

viability’’ to identify that ACEP–ALE 

purposes include the legal, physical, 

and financial conditions under which 

the land itself will remain capable and 

available for continued sustained 

productive agricultural or grassland 

uses. The 2018 Farm Bill maintained the 

reference to ‘‘agricultural uses and 

future viability’’ in the context of the 

program purposes and introduced the 

term ‘‘agricultural viability’’ in the 

context of potential application 

prioritization. NRCS believes that the 

existing definition of ‘‘future viability,’’ 

which is sufficiently expansive without 

being overly prescriptive, includes such 

concepts as accessibility to beginning 

farmers or ranchers and continued 

affordability. To address the request for 

clarity, NRCS has included a reference 

to the adoption of a farm or ranch 

succession plan as another example of 

a condition that supports the future 

viability of the protected land. 

Comment: NRCS received comment 

related to the definition of historically 

underserved landowner, recommending 

that socially disadvantaged farmers be 

specifically identified, be included in 

the definition of historically 

underserved landowners, and be added 

to the definition of ‘‘socially 

disadvantaged farmer or rancher.’’ This 

comment refers to the provision in the 

interim rule associated with farm or 

ranch succession planning that 

identifies new or beginning farmers or 

ranchers, veteran farmers or ranchers, or 

‘‘other historically underserved 

landowners.’’ 

Response: The definition of 

historically underserved landowner 

includes beginning, limited resource, 

socially disadvantaged, and veteran 

farmer or ranchers. As a result, the 

definition of farm or ranch succession 

plan has been modified in this final rule 

to refer simply to ‘‘historically 

underserved landowner’’ since this term 

is all-encompassing. The definition of 

socially disadvantaged farmer or 

rancher has been in the definitions 

section since the ACEP regulation was 

first promulgated in 2015. 

Comment: NRCS received comment 

that suggested replacing the concept of 

watersheds with ‘‘watershares.’’ 

Response: NRCS has long been 

involved in watershed and watershed 

planning, and the term ‘‘watershares’’ is 

not a universal term. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

requesting that the definition of 

‘‘riparian areas’’ be modified to 

eliminate the ‘‘movement for wildlife’’ 

as an element. 

Response: The definition of riparian 

areas has long included reference to the 

movement of wildlife as it is one of the 

critical functions of riparian areas. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

requesting removal of reference to 

species that are ‘‘likely to undergo’’ 

population decline from the definition 

of ‘‘at-risk species.’’ The commenter 

objected to an unnamed agency 

imposing restrictions through an 

unknown process. 

Response: The interim rule identified 

the determination of ‘‘likely to undergo 

population decline’’ is made by the 

NRCS State Conservationist, with advice 

from the State technical committee or 

Tribal Conservation Advisory Council. 

The definition is shared across NRCS 

conservation programs, all of which are 

voluntary. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

requesting a change to the definition of 

‘‘agricultural commodity’’ so that the 

intent to harvest annually rather than 

tillage is used as the determining 

mechanism. 

Response: The definition of 

agricultural commodity is contained in 

statute. No change is made to the 

regulation in response to this issue. 

Easement Administration Actions 

NRCS received comment related to 

easement administration actions as 

follows: 

Comment: NRCS received comment 

related to the identification of the 

sequencing procedures under the 

National Environmental Policy Act 

(NEPA) with respect to easement 

administration actions, recommending 

that easement administration actions 

related to sequencing considerations be 

classified as categorical exclusions for 

NEPA analysis. Other comment 

suggested that the provision be 

amended to eliminate NEPA sequencing 

review if the easement administrative 

actions either enhance purposes of the 

ACEP–ALE program or do not 

materially threaten the ALE’s protection 


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of agricultural viability or other 

conservation values, and requested 

removal of reference to NEPA entirely. 

Comment also requested clarification 

about how NEPA sequencing 

considerations may affect NRCS 

approval of easement administration 

actions. 

Response: The decision to modify or 

terminate a Federal interest has long 

been subject to NEPA review, and NRCS 

must comply with NEPA statutory, 

regulatory, and policy requirements 

during its review of a requested 

easement administration action. These 

requirements include reviewing 

whether adverse impacts associated 

with an easement administration action 

can be avoided, minimized, or 

mitigated. Since the impacts and 

outcomes of an easement administration 

action cannot be categorized generally, 

a specific review is necessary. As NRCS 

evaluates the NEPA analyses developed 

for the individual easement 

administrative actions, it is gathering 

evidence that may be used to propose 

categorical exclusions for certain 

easement administrative actions in the 

future. NRCS may identify new 

categorical exclusions, through issuing 

new NEPA procedures (including by 

amending NRC’s current regulations 

implementing NEPA at 7 CFR part 650), 

consistent with the Council on 

Environmental Quality’s regulations for 

implementing the procedural provisions 

of NEPA, published at 40 CFR parts 

1500 through 1508. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

related to adding references or 

additional requirements to the easement 

administration action criteria, including 

a reference to the easement 

administration criteria indicating that 

any easement modification or 

termination conform to State law 

requirements, and including a reference 

that easement administration actions 

must conform to section 170(h) of IRC 

and associated U.S. Department of the 

Treasury (Treasury) regulations. 

Comment also requested that easement 

administration actions align more 

closely with Land Trust Alliance (LTA) 

industry standards. 

Response: Easement administration 

actions are documented in land records 

in accordance with State law. NRCS’s 

authority to approve easement 

administration actions is not subject to 

requirements in section 170(h) of the 

Treasury or associated regulations 

related to charitable donations. 

However, entities are not prevented 

from incorporating language that 

addresses their own compliance with 

section 170(h) in their part of the 

conservation easement deed terms. 

NRCS must implement easement 

administration actions in accordance 

with Federal law and responsibilities; 

private land trusts are not subject to 

these requirements when conducting 

actions without Federal involvement. It 

would not be appropriate for NRCS to 

adopt ‘‘industry standards’’ that do not 

account for these Federal standards. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

related to the various easement 

administration action requirements, 

including: 

• Recommending that NRCS remove 

the 10-percent limitation on easement 

administration actions so that an 

easement modification or exchange 

action would just need to meet one of 

the two thresholds: (1) The action 

provide equal or greater conservation 

functions and values and (2) equal or 

greater economic values; 

• Recommending removal of the 

standard of no net loss of easement 

acres required for easement 

subordination, modification, or 

exchange actions; and 

• Recommending a change to the 

definition of easement termination to 

acknowledge compensation that may be 

owed to other interest holders in a 

conservation easement. 

Response: NRCS uses the 10-percent 

limitation requirement to minimize the 

effects of administration actions. NRCS 

selected the 10-percent level based upon 

review of the scope of prior requests for 

easement administration actions and for 

consistency with other NRCS 

conservation programs. 

It is a statutory requirement that an 

easement modification or exchange 

action must meet both thresholds (equal 

or greater conservation value and equal 

or greater economic value). 

As to the threshold for an easement 

subordination, modification, or 

exchange to result in no net loss of 

easement acres, NRCS believes, based 

on long-standing experience, that the 

existing standard ensures that the public 

investment in conservation easements 

endures for the life of the easement and 

that NRCS is able to make credible 

determinations of equal or greater 

conservation and economic value as 

required by statute. The definition of 

easement termination addresses only 

the United States’ rights or interests in 

an easement, including that the United 

States must be fully compensated for the 

termination of such rights and interests 

that are held by the United States. The 

easement termination language does not 

address or affect compensation that may 

be owed to other interest holders. 

No change is made to the regulation 

in response to these issues. 

Comment: NRCS received comment 

that requested NRCS modify language 

regarding easement termination to 

clarify that it also applies to the partial 

termination of an easement. 

Response: NRCS has clarified that 

partial termination of an easement is 

subject to the easement termination 

requirements to the same extent as the 

full termination of an easement. All 

easement termination actions are subject 

to review at both the NRCS State office 

and National Headquarters levels. 

Comment: NRCS received comment 

that supported allowing the use of 

updated deed provisions when making 

easement amendments, cautioned that 

flexibility be granted to do simple 

amendments, and advised NRCS not to 

require updates to new language that 

may be contained in updated deed 

provisions of those provisions are 

unnecessary or unacceptable to the 

landowner. 

Response: NRCS appreciates the 

support received for deed amendment 

process requirements. Deed 

amendments to ACEP–ALE easement 

deeds must be approved by NRCS, as 

discussed above. No change is made to 

the regulation in response to this issue. 

Environmental Markets 

Comment: NRCS received comment 

expressing support for updates to the 

section on environmental markets. 

Response: NRCS appreciates the 

comments. 

Fund Allocations 

NRCS received comment related to 

ACEP fund allocations as follows: 

Comment: NRCS received comment 

supporting the historic division of fund 

allocations across ACEP, that is based 

on demand for funding. Approximately 

70 percent of ACEP funding is dedicated 

to wetland conservation through ACEP– 

WRE and 30 percent is for agricultural 

land preservation through ACEP–ALE. 

Another comment urged greater 

flexibility with respect to fund 

allocations. 

Response: NRCS has not specified in 

the regulation an allocation of program 

funds between the two components of 

the program. NRCS maintains program 

flexibility year-to-year to respond to 

program demand. No change is made to 

the regulation in response to this issue. 

Comment: NRCS received comment 

recommending continued use of ACEP– 

WRE authorities to enter into 

agreements and contracts with nongovernmental organizations, State 


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agencies, and other partners to continue 

to leverage resources and expertise. 

Response: NRCS relies on its partners 

to assist NRCS in its delivery of ACEP– 

WRE and will continue to utilize its 

authorities to coordinate with these 

valuable partners. No change is made to 

the regulation in response to this issue. 

Comment: NRCS received comment 

supporting the continued allocation of a 

portion of ACEP funds for monitoring 

and management of existing easements 

and recommending that State 

Conservationists have discretion to 

determine the appropriate portion of the 

individual State allocation to be used 

for monitoring and management of 

existing easements. 

Response: NRCS National 

Headquarters provides on-going 

coordination, guidance, and support to 

State Conservationists to ensure that 

sufficient funds are dedicated and used 

to appropriately monitor, manage, and 

enforce stewardship lands. No change is 

made to the regulation in response to 

this issue. 

Landowner Eligibility—Adjusted Gross 

Income (AGI) Limitation Waiver 

NRCS received comment related to 

the AGI limitation waiver as it affects 

landowner eligibility to enroll in ACEP 

as follows: 

Comment: NRCS received comment 

related to the definition and criteria for 

environmentally sensitive lands of 

special significance, including 

encouraging NRCS in its AGI waiver 

determinations to give the most 

consideration to lands with the highest 

conservation value, particularly lands of 

special significance that can 

demonstrate significant linkages with 

the conservation objectives of migratory 

bird, wetlands conservation, and water 

quality programs, plans, or initiatives. 

Comment also requested that 

environmentally sensitive land of 

special significance be explicitly 

defined. 

Response: NRCS will consider the 

factors noted in the comment in 

granting AGI waivers. Terms associated 

with the AGI waiver are set forth in the 

regulations governing payment 

limitation and payment eligibility 

requirements, including AGI provisions, 

at 7 CFR part 1400. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

suggesting that NRCS expand eligibility 

for AGI waivers, including allowing the 

waiver for all ACEP–ALE enrollment, 

automatically waiving AGI for BPS 

transactions, and interpreting AGI 

waiver factors broadly. 

Response: NRCS may only grant 

waivers on a case-by-case basis where 

the waiver criteria are met. Broadening 

the waiver authority to eliminating AGI 

applicability to all ALE enrollment 

types is outside statutory authority. No 

change is made to the regulation in 

response to this issue. 

Comment: NRCS received comment 

seeking increased streamlining and 

guidance regarding AGI waivers. 

Response: NRCS will continue its 

ongoing efforts to streamline processes 

through the use of new tools. NRCS will 

continue to develop and release specific 

guidance as needed. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comments 

expressing support for the use of AGI 

waiver authority in ACEP. 

Response: NRCS appreciates support 

for its AGI waiver process. 

Program Administration 

NRCS received comment on the topic 

of program administration as follows: 

Comment: NRCS received one 

detailed comment emphasizing the 

importance of protecting endangered 

and at-risk species through ACEP. This 

comment specifically referred to 

salmonid species. 

Response: NRCS appreciates the 

importance of protecting threatened and 

endangered species and its 

responsibility to comply with the 

Endangered Species Act (ESA), 

including ESA section 7(a)(1). As part of 

its conservation planning framework 

and site-specific NEPA process, NRCS 

also considers impacts to at-risk species 

as required by its NEPA implementing 

regulations (7 CFR part 650). No change 

is made to the regulation in response to 

this issue. 

Comment: NRCS received comment 

related to outreach activities, including 

recommending that: NRCS retain its 

outreach focus on historically 

underserved farmers and ranchers; 

funds expended for historically 

underserved purposes be identified and 

made public; and NRCS ensure that the 

process is streamlined to ensure access 

to disadvantaged and underserved 

populations. Comment also reminded 

NRCS regarding sovereign-to-sovereign 

consultation for Farm Bill easement 

programs having Tribal implications. 

Response: NRCS will continue to 

evaluate options to enhance 

opportunities for historically 

underserved producers and focus 

resources on ensuring parity in program 

enrollment. NRCS conducted several 

Tribal meetings in FY 2019 and FY 2020 

and State Conservationists obtained 

input on program implementation from 

the Tribal Conservation Advisory 

Committees. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

expressing specific support for various 

aspects of program administration, 

including supporting NRCS discretion 

to waive certain program administration 

provisions and commending NRCS for 

continuing to obtain input from State 

technical committees, other Federal and 

State agencies, conservation districts, 

and other organizations. 

Response: NRCS appreciates the 

support it has received for ACEP 

administration. 

Comment: NRCS received comment 

urging continued or increased 

consultation with partners and 

stakeholders, including State technical 

committees, non-governmental 

organizations, and the U.S. Fish and 

Wildlife Service. 

Response: NRCS will continue to seek 

stakeholder input on how to improve 

program administration, especially 

input that NRCS receive on State and 

local resource issues. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

asking that technical assistance 

provided by NRCS regarding 

compliance with easement terms be 

clarified and recommending creation of 

ACEP-specific forms. Comment also 

recommended guidance on conflicts of 

interest and information on the 

implementation of Voluntary Public 

Access and Habitat Incentives Program 

(VPA–HIP). 

Response: NRCS will continue its 

ongoing efforts to streamline processes, 

including modifying its required forms, 

through the use of new tools. 

Additionally, NRCS will continue to 

develop and release guidance on 

specific topics as needed. NRCS 

regulation and policy regarding VPA– 

HIP is provided separately and can be 

found in 7 CFR part 1455, and 

associated agency policy is available on 

the NRCS website. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

recommending that NRCS include text 

regarding ACEP ranking that prioritizes 

lands enrolled in the Transition 

Incentives Program under the 

Conservation Reserve Program (CRP– 

TIP). Section 1235(f)(1)(E) of the CRP 

statute requires that priority enrollment 

be given to land subject to a CRP–TIP 

contract into EQIP, Conservation 

Stewardship Program (CSP), and ACEP. 

Response: Section 1468.22(b)(11) of 

the ACEP interim rule identifies as a 

national priority for ALE enrollment 


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grasslands currently enrolled in CRP in 

a contract that is set to expire within 1 

year. Section 1468.32(c) of the ACEP 

interim rule identifies as a potential 

State priority for WRE enrollment 

whether land is farmed wetland and 

adjacent land that is currently enrolled 

in CRP in a contract that is set to expire 

within 1 year. However, neither ALE 

nor WRE identify a specific priority 

ranking for CRP–TIP land. Therefore, 

NRCS is adding a specific priority in the 

ACEP regulation for CRP–TIP. 

Comment: NRCS received comment 

related to the practices and activities 

administered through ACEP, including: 

• Encouraging NRCS to adopt the 

‘‘Active River Area Concept’’ to its 

management scheme; 

• Proposing that all easements go 

through a plant and plant community 

survey by a botanist prior to enrollment; 

• Seeking confirmation that NRCS 

would not enter into agreements with 

entities who would preclude forested 

riparian buffers; 

• Recommending that NRCS 

recognize specifically intensive 

rotational grazing as one of the best 

management tools; and 

• Recommending that diverse native 

plant mixes be prioritized in ACEP 

wetland and grassland restoration and 

management plans. 

Response: NRCS addresses how best 

to administer its practices and activities 

through technical and program policy 

implemented at the State level through 

the discretion given NRCS State 

Conservationists. In general, NRCS 

supports the development and 

implementation of plans and restoration 

activities that consider the value of 

management and restoration activities 

that provide for a diverse assemblage of 

native plants, including pollinatorfriendly species. However, NRCS 

believes that specific resource 

management issues are best addressed at 

the State level. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

related to program administration that 

did not fit neatly into any single 

subtopic: 

• Require landowners to assume 

responsibility for operation and 

maintenance of easements; 

• Provide sufficient staffing to meet 

customer service needs; 

• Concern over the authorization of 

permanent easements; 

• Make publicly available 

information related to easement 

enrollments such as acres enrolled, soil 

classification of land, and before and 

after land use; 

• Condition ACEP so that all funded 

efforts achieve consistency with State 

water quality standards and salmon 

recovery plan habitat objectives; and 

• Review easement deed terms at 

least every 100 years to ensure 

consistency with existing conditions. 

Response: The operation and 

maintenance that may occur on ACEP 

easements and who may perform such 

activities is addressed in the terms of 

the easement deeds. 

NRCS staffing is not a part of this 

rulemaking, but the agency will 

continue providing the highest quality 

customer service and program 

implementation with its resources. 

Permanent easements are authorized 

and prioritized by statute. 

As NRCS collects data, the agency 

generates multiple reports on a variety 

of impacts, which are typically made 

available to the public upon request. 

NRCS will consider the 

recommendation regarding consistency 

with water quality standards and 

recovery plan habitat objectives as it 

continues to evaluate and refine ranking 

and eligibility criteria. 

Review of easement deed terms at 

least every 100 years is beyond the 

scope of current regulation and policy. 

No change is made to the regulation 

in response to these issues. 

Comment: NRCS received comment 

related to source water protection issues 

including: 

• Recommending that NRCS 

acknowledge source water protection as 

a goal of ACEP; 

• Adding discussion about how 

source water protection priorities will 

be included in the implementation of 

ACEP and other NRCS conservation 

programs; 

• Addressing how ACEP will be 

included in accounting for overall 

source water expenditures by 

publishing a plan for comment; 

• Adding source water protection in 

the ACEP ranking criteria; 

• Ensuring adequate attention given 

to source water protection at State 

technical committees; and 

• Recommending that NRCS address 

how spatial data related to source water 

areas will intersect with ACEP. 

Response: Source water protection is 

a statutory priority and NRCS 

Headquarters provides guidance to 

ensure that all its programs are 

contributing to the protection of source 

water protection areas. The ACEP 

regulation includes water quality as a 

consideration in the list of ranking 

criteria for both ALE and WRE and the 

State Conservationist, in consultation 

with the State technical committee, may 

develop and include specific 

considerations for source water 

protection as part of their State’s 

ranking factors. NRCS uses geographic 

information system tools to help 

identify source water protection areas 

and easement enrollment. No change is 

made to the regulation in response to 

this issue. 

WRE Issues 

NRCS received comment related to 

ACEP–WRE topics as follows: 

Comment: NRCS received comment 

supporting revisions to the definition of 

wetland restoration in the interim rule 

regarding ACEP–WRE. Comment 

highlighted that the expanded flexibility 

would benefit wetland functions and 

habitat values. Comment also 

encouraged NRCS to engage robustly 

with State technical committees when 

devising the State-specific NRCS criteria 

and guidelines for wetland restoration. 

Response: NRCS appreciates support 

for the revised definition of wetland 

restoration. 

Comment: NRCS received comment 

related to compatible use authorizations 

under ACEP–WRE, expressing support 

for the inclusion of water management 

and supporting the use of such 

management activities to maintain, 

enhance, and diversify wetland habitats 

on ACEP–WRE easements. Comment 

also recommended removing ‘‘hunting 

and fishing’’ from the list of activities 

that can be authorized as a compatible 

use in § 1468.37(a)(2)(ii) because 

undeveloped recreational uses, 

including hunting and fishing, are listed 

as one of the five rights reserved by the 

landowner in the ACEP–WRE warranty 

easement deed. Comment also identified 

that NRCS should seek input from the 

State technical committee on technical 

matters related to compatible use 

designations and guidelines. 

Response: NRCS appreciates support 

for the inclusion of water management 

and recognizes the potential utility of 

this activity to wetland functions and 

values when properly prescribed and 

implemented on ACEP–WRE easements 

through the compatible use 

authorization process. Hunting and 

fishing are specifically identified in the 

ACEP statute as a ‘compatible use’ that 

is subject to NRCS determination of 

compatibility. NRCS has implemented 

this provision by identifying in all 

ACEP–WRE easement deeds that 

undeveloped hunting and fishing, 

subject to the terms of the easements, is 

a reserved right. However, any hunting 

and fishing activities that extend 

beyond that reserved right are 

prohibited unless determined 

compatible by NRCS through the 

compatible use authorization process. In 

the ACEP interim rule, NRCS included 

compatible use criteria and related 


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matters in the expanded list of examples 

provided in § 1468.2(b) regarding 

subjects on which the State technical 

committee may provide advice to the 

State Conservationist. 

Comment: NRCS received comment 

regarding wetland restoration and 

management activities, encouraging that 

the technical requirements for grazing 

management plans and exhibits for 

ACEP–WRE grazing reserved rights 

enrollments be developed in 

consultation with State technical 

committees and that the individual 

grazing management plans be dynamic 

to accommodate wildlife and habitat 

conservation along with producer 

needs. Comment also recommended that 

NRCS prioritize activities supporting 

migratory waterfowl and other wetlanddependent wildlife through sciencebased management and recommended 

levee setbacks and forested riparian 

buffers be allowed on all easements in 

Washington State. 

Response: NRCS appreciates comment 

related to grazing management plans 

and ACEP–WRE reservation of grazing 

rights enrollments. The ACEP interim 

rule provided clarifying changes 

consistent with these recommendations, 

including addition of a grazing 

management plan definition that is 

specific to ACEP–WRE and provisions 

related to the review and modification 

of such plans for reserved grazing rights 

enrollments. NRCS conducts and 

supports monitoring and research on its 

wetland easements to obtain data and 

information that informs technical 

decisions related to prioritization and 

selection of new easements and 

restoration and management of existing 

easements. NRCS will continue to 

collaborate with partners and 

institutions to obtain the information 

needed to make science-based decisions 

to maximize wildlife benefits and 

wetland functions and values on every 

ACEP–WRE easement. The concern 

related to restoration activities in the 

State of Washington do not rise to a 

nationwide level and are not addressed 

in the regulation. The ACEP regulation 

and other NRCS planning procedures 

provide the States the needed 

flexibilities to make technical decisions 

related to enrollment, restoration, and 

management of ACEP–WRE lands. 

NRCS recommends that stakeholders 

with concerns should work with their 

applicable State Conservationist. 

Comment: NRCS received comment 

related to WRE land eligibility: 

Recommending that NRCS allow 

cropping on the WRE easement area; 

supporting the increase in the 

percentage of easements that can be 

enrolled on cropland in a county from 

10 percent to 15 percent; and requesting 

flexibility with respect to the 2-year 

ownership requirement for land that the 

farmer has managed for numerous years 

prior to purchase. 

Response: NRCS prohibits cropping 

on ACEP–WRE enrolled lands because 

the purpose of the program is to restore 

the wetland functions and values and 

crop production is inconsistent with 

such purposes. NRCS appreciates the 

comments related to the county 

cropland limitation. The 2-year 

ownership provision in the ACEP 

regulation is a specific statutory 

requirement, but flexibility exists 

through the waiver process. When 

deciding whether to waive the 2-year 

ownership requirement, NRCS 

considers whether the land has been 

managed by the landowner as part of 

their operation prior to acquiring 

ownership of the land. No change is 

made to the regulation in response to 

these issues. 

Comment: NRCS received comment 

relating to factors used to prioritize 

enrollments in ACEP–WRE, including 

support for prioritizing permanent 

easements over non-permanent 

easements and including water quality 

as a conservation benefit. 

Response: NRCS appreciates support 

for the ACEP–WRE prioritization 

factors. 

Comment: NRCS received comment 

recommending NRCS consider funds 

from other Federal sources as 

contributions for ranking purposes. 

Response: Section 1265C(b)(3) of the 

ACEP statute authorizes as a ranking 

factor whether the landowner or other 

person offers to contribute to the cost of 

the easement and thereby leverage 

Federal funds. The statutory priority is 

that Federal funds, not just ACEP–WRE 

funds, be leveraged by other sources, 

and NRCS has incorporated this factor 

into the regulation. NRCS State 

Conservationists, with input from State 

technical committees, may consider 

other priorities that further program 

goals, including other sources of 

contribution. However, other Federal 

sources of contribution may have 

restrictions on the use of their funds and 

NRCS must ensure that there is no 

augmentation in contravention of 

appropriations law. No change is made 

to the regulation in response to this 

issue. 

Comment: NRCS received comment 

supporting and encouraging NRCS to 

continue to seek advice and input on 

implementation of ACEP–WRE from the 

U.S. Fish and Wildlife Service, State 

fish and wildlife agencies, and State 

technical committees. 

Response: Both ACEP regulation and 

policy require the NRCS to seek 

continued engagement from these 

partners. No change is made to the 

regulation in response to this issue. 

Comment: NRCS received comment 

related to the Wetland Restoration 

Enhancement Partnership (WREP), 

recommending that NRCS restore the 5 

percent match requirement for the 

WREP partner contributions and 

maintain historic levels of partner 

contributions at 25 percent. Another 

comment recommended that NRCS 

provide an annual allocation for WREP 

of between $35–50 million per year. 

Response: NRCS appreciates the 

support for WREP. NRCS has not 

established any regulatory level of 

match that is required for WREP and 

bases such determination upon the 

focus of each year’s WREP effort. No 

change is made to the regulation in 

response to this issue. 

Notice and Comment, Paperwork 

Reduction Act, and Effective Date 

In general, the Administrative 

Procedure Act (APA) (5 U.S.C. 553) 

requires that a notice of proposed 

rulemaking be published in the Federal 

Register and interested persons be given 

an opportunity to participate in the 

rulemaking through submission of 

written data, views, or arguments with 

or without opportunity for oral 

presentation, except when the rule 

involves a matter relating to public 

property, loans, grants, benefits, or 

contracts. This rule involves matters 

relating to benefits and therefore is 

exempt from the APA requirements. 

Further, the regulations to implement 

the programs of chapter 58 of title 16 of 

the U.S. Code, as specified in 16 U.S.C. 

3846, and the administration of those 

programs, are: 

• To be made as an interim rule 

effective on publication, with an 

opportunity for notice and comment; 

• Exempt from the Paperwork 

Reduction Act (44 U.S.C. ch. 35); and 

• To use the authority under 5 U.S.C. 

808 related to congressional review. 

Consistent with the use of the 

authority under 5 U.S.C. 808 related to 

Congressional review for the immediate 

effect date of the interim rule, this rule 

is also effective on the date of 

publication in the Federal Register. 

Executive Orders 12866 and 13563 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ direct agencies 

to assess all costs and benefits of 

available regulatory alternatives and, if 

regulation is necessary, to select 


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regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, distributive impacts, 

and equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

The Office of Management and Budget 

(OMB) designated this rule as 

significant under Executive Order 12866 

and therefore, OMB has reviewed this 

rule. The costs and benefits of this rule 

are summarized below. The full 

regulatory impact analysis is available 

on https://www.regulations.gov/. 

Clarity of the Regulation 

Executive Order 12866, as 

supplemented by Executive Order 

13563, requires each agency to write all 

rules in plain language. In addition to 

the substantive comments NRCS 

received on the interim rule, NRCS 

invited public comments on how to 

make the rule easier to understand. 

NRCS has incorporated these 

recommendations for improvement 

where appropriate. NRCS responses to 

public comment are described in more 

detail above. 

Cost-Benefit Analysis 

One of the most significant ACEP 

changes in the 2018 Farm Bill is to the 

existing contribution requirements for 

the non-Federal share under ACEP– 

ALE. Previously, there were only two 

sources of non-Federal contribution— 

the entity’s cash resources towards the 

purchase and the donation by the 

entity—with cash resources towards the 

purchase required for half of the nonFederal contribution. The 2018 Farm 

Bill eliminated the requirement for cash 

resources towards the purchase and 

allows the entity to consider other costs, 

previously not included, toward the 

non-Federal match. This change adds 

flexibility for eligible entities to meet 

the non-Federal share requirement by 

no longer specifying a minimum cash 

contribution amount to be provided by 

the eligible entity and allowing the total 

of the non-Federal share to be 

comprised of a charitable donation or 

qualified conservation contribution 

from the private landowner. It also 

includes provisions for costs related to 

securing the easement to be included in 

the calculation of the non-Federal share. 

While removing a potential hurdle to 

entity participation, the additional 

flexibility is not intended to supersede 

the conservation benefits possible under 

ACEP. 

There are six states and one territory 

(Alabama, Arkansas, Hawaii, Louisiana, 

Missouri, North Dakota, and Puerto 

Rico) that currently have no enrollment 

in ACEP–ALE. This may have been due 

to a lack of available financial resources 

for an eligible entity to meet the 

minimum cash contribution 

requirement or may be due to a lack of 

entities that meet the eligibility 

requirements to participate in ACEP– 

ALE. The changes to the non-Federal 

share requirements may result in 

increased ACEP–ALE enrollments in 

areas where enrollment has been limited 

due to a lack of financial resources 

available for entities that meet the 

ACEP–ALE eligibility requirements. To 

address these statutory changes, in this 

final, we eliminated a specified 

minimum cash contribution amount and 

incorporated provisions for considering 

costs related to securing the easement. 

These changes are applicable to all 

eligible entities in all States and as a 

result, it is anticipated that the amount 

of the Federal contribution toward 

ACEP–ALE easements will increase by 8 

to 10 percentage points. 

Another change under the 2018 Farm 

Bill provides NRCS with authority to 

enter into legal arrangements with 

eligible entities to conduct BPS 

transactions under ACEP–ALE. Under a 

BPS transaction, NRCS may provide 

ACEP–ALE cost-share assistance to an 

eligible entity for the purchase of an 

agricultural land easement on private or 

Tribal agricultural land owned on a 

transitional basis by an eligible entity 

when the ownership of that land will be 

timely transferred to a qualified farmer 

or rancher. BPS transactions are 

intended to help farmers and ranchers 

acquire agricultural land they could not 

otherwise afford and to protect 

agricultural land that may have 

otherwise been developed or removed 

from agricultural production. 

NRCS continues to have the 

discretion to rank and prioritize projects 

and to select individual applications 

based on their ability to achieve 

program purposes and to assess and 

determine the appropriate allocation of 

funds for the acquisition of agricultural 

land and wetland easements. The 2018 

Farm Bill does not limit NRCS’s 

discretion to determine the allocation of 

funds between ACEP–WRE and ACEP– 

ALE. The relative emphasis NRCS 

places on these two program 

components depends on State and 

national priorities, environmental 

impacts, and local demand. It is 

anticipated that enrollment in ACEP 

will be consistent with historic 

enrollment trends. 

Land enrolled in ACEP–WRE 

easements produces onsite and offsite 

environmental benefits. Those include: 

Restoring and protecting high value 

wetlands; controlling sheet and rill 

erosion as lands are restored from 

cropland to wetlands and associated 

habitats; restoring, enhancing, and 

protecting habitat for fish and wildlife, 

including threatened and endangered 

species and migratory birds; improving 

water quality by filtering sediment and 

chemicals; reducing flooding and floodrelated damage; recharging 

groundwater; protecting biological 

diversity; controlling invasive species 

with planting of native vegetation; and 

providing opportunities for educational, 

scientific, and recreational activities. 

Soil health and air quality are improved 

by reduced wind erosion, reduced soil 

disturbance, increased organic matter 

accumulation, and an increase in carbon 

sequestration. 

For land enrolled in ACEP–ALE, the 

suite of conservation effects on 

protected grasslands are different than 

those on protected farmland; the 

impacts are not valued here as one being 

more beneficial than another. For 

example, ACEP–ALE easements on 

grasslands limit agricultural activities to 

predominantly haying and grazing, 

whereas easements on farmland allow 

crop cultivation and pasture-based 

agriculture. As such, farmland 

protection effects are derived from 

onsite and ecological services, as well as 

preserving highly productive 

agricultural areas from development or 

fragmentation. Impacts on grasslands 

are derived from onsite and ecological 

impacts as well as preventing 

conversion to nongrassland uses. The 

net conservation effects through time 

from farmland protection include direct 

access benefits (pick-your-own, agritourism, and nature based activities like 

hunting), indirect access benefits (open 

spaces and scenic views), and nonuse 

benefits (wildlife habitat and existence 

values). Grassland protection 

conservation effects include direct, 

indirect, and nonuse benefits, and also 

on-farm production gains and carbon 

sequestration. 

The authorized level of funding for 

ACEP for the period of FY 2019 through 

2023 is $2.25 billion (assuming future 

funding is set at authorized amounts). 

This represents an increase in ACEP 

average annual funding over the 2014 

Farm Bill of 11 percent—from $405 

million per year to $450 million per 

year in nominal dollars. 

The regulatory impacts of ACEP 

funding consist of payments for the 

purchase of easements or real property 

interests; the costs incurred related to 

the acquisition, such as title companies, 

appraisers, licensed land surveyors; and 

the costs of restoring wetlands. 


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Although these transfers create 

incentives that likely cause changes in 

the way society uses its resources, NRCS 

lacks data with which to identify where 

these resources would otherwise be 

used. 

NRCS also recognizes that applicants 

and participants incur costs in terms of 

time used to gain access to ACEP. We 

estimate the imputed value of applicant 

and participant time spent in accessing 

the program from FY 2019 through 2023 

at $1.1 million for the 5 years. 

Our estimates of costs, benefits and 

transfers of ACEP on an annual basis are 

reported in Table 1. Given a 3 percent 

discount rate, the projected annualized 

real cost to producers of accessing the 

program is $229,000 and the projected 

annualized real transfers are $433 

million. Conservation benefits from the 

easement are difficult to quantify at a 

national scale but have been described 

by studies at an individual project or 

watershed or local scale. 

TABLE 1—ANNUALIZED REAL ESTIMATED COSTS, BENEFITS, AND

TRANSFERS a

Category Annual estimate 

Cost b ......................... $229,000 

Benefits ..................... Qualitative 

Transfers ................... $433,000,000 

aAll estimates are discounted at 3 percent 

to 2019. Note that this table focuses on the 

costs, benefits, and transfers of the entire program, not the marginal change in a comparison of the 2014 and 2018 Farm Bills. b Imputed cost of applicant time to gain access to the program. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601–612), as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 

generally requires an agency to prepare 

a regulatory analysis of any rule 

whenever an agency is required by APA 

or any other law to publish a proposed 

rule, unless the agency certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities. This rule is 

not subject to the Regulatory Flexibility 

Act because this rule is exempt from 

notice and comment rulemaking 

requirements of the APA and no other 

law requires that a proposed rule be 

published for this rulemaking initiative. 

Environmental Review 

The environmental impacts of this 

rule have been considered in a manner 

consistent with the provisions of NEPA 

(42 U.S.C. 4321–4347), the regulations 

of the Council on Environmental 

Quality (40 CFR parts 1500–1508), and 

the NRCS regulations for compliance 

with NEPA (7 CFR part 650). NRCS 

conducted an analysis of the ACEP 

interim rule and NRCS’s analysis 

determined there would not be a 

significant impact to the human 

environment and as a result, an 

environmental impact statement (EIS) is 

not required to be prepared (40 CFR 

1501.5 and 1501.6). The Environmental 

Assessment (EA) and Finding of No 

Significant Impact (FONSI) were 

available for review for 30 days from the 

date of publication of the interim rule in 

the Federal Register. NRCS considered 

comments received during the 30-day 

period and determined minor changes 

to the ACEP EA and FONSI were 

sufficient, and that no information 

warranting preparation of an EIS was 

received. The final ACEP EA and FONSI 

have been posted to the NRCS 

homepage at https://

www.nrcs.usda.gov/wps/portal/nrcs/ 

detail/national/programs/farmbill/ 

?cid=stelprdb1263599. 

Executive Order 12372 

Executive Order 12372, 

‘‘Intergovernmental Review of Federal 

Programs,’’ requires consultation with 

State and local officials that would be 

directly affected by proposed Federal 

financial assistance. The objectives of 

the Executive order are to foster an 

intergovernmental partnership and a 

strengthened federalism, by relying on 

State and local processes for State and 

local government coordination and 

review of proposed Federal financial 

assistance and direct Federal 

development. For reasons specified in 

the final rule-related notice regarding 7 

CFR part 3015, subpart V (48 FR 29115, 

June 24, 1983), the programs and 

activities in this rule are excluded from 

the scope of Executive Order 12372. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, ‘‘Civil Justice 

Reform.’’ This rule will not preempt 

State or local laws, regulations, or 

policies unless they represent an 

irreconcilable conflict with this rule. 

Before any judicial actions may be 

brought regarding the provisions of this 

rule, the administrative appeal 

provisions of 7 CFR part 11 are to be 

exhausted, consistent with 7 U.S.C. 

6912(e). 

Executive Order 13132 

This rule has been reviewed under 

Executive Order 13132, ‘‘Federalism.’’ 

The policies contained in this rule do 

not have any substantial direct effect on 

States, on the relationship between the 

Federal Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government, except as required 

by law. Nor does this rule impose 

substantial direct compliance costs on 

State and local governments. Therefore, 

consultation with the States is not 

required. 

Executive Order 13175 

This rule has been reviewed in 

accordance with the requirements of 

Executive Order 13175, ‘‘Consultation 

and Coordination with Indian Tribal 

Governments.’’ Executive Order 13175 

requires federal agencies to consult and 

coordinate with Tribes on a 

Government-to-Government basis on 

policies that have Tribal implications, 

including regulations, legislative 

comments or proposed legislation, and 

other policy statements or actions that 

have substantial direct effects on one or 

more Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The USDA’s Office of Tribal Relations 

(OTR) has assessed the impact of this 

rule on Indian Tribes and determined 

that this rule does not have significant 

Tribal implications that require Tribal 

consultations at this time for ACEP, 

which is a beneficial voluntary program. 

Notwithstanding this conclusion, OTR 

believes that continued focused 

outreach to Tribes could increase 

engagement in ACEP and provide 

assistance with water quality issues for 

Tribes. OTR states that NRCS has 

adhered to the spirit and intent of 

Executive Order 13175. If a Tribe 

requests consultation, NRCS and CCC 

will work with OTR to ensure 

meaningful consultation is provided 

where changes, additions, and 

modifications identified in this rule are 

not expressly mandated by the 2018 

Farm Bill. Tribal consultation for this 

rule was included in the 2018 Farm Bill 

Tribal consultation held on May 1, 

2019, at the National Museum of the 

American Indian, in Washington, DC. 

The portion of the Tribal consultation 

relative to this rule was conducted by 

Bill Northey, USDA Under Secretary for 

the Farm Production and Conservation 

mission area, as part of the Title I 

session. There were no specific 

comments from Tribes on ACEP during 

this Tribal consultation. 

Additionally, NRCS held sessions 

with Indian Tribes and Tribal entities 

across the country in the spring of FY 

2019 to describe the 2018 Farm Bill 

changes to NRCS conservation 

programs, obtain input about how to 

improve Tribal and Tribal member 


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access to NRCS conservation assistance, 

and make any appropriate adjustments 

to the regulations that will foster such 

improved access. NRCS invited State 

leaders for FSA and Rural Development 

(RD), as well as Regional Directors for 

the Risk Management Agency (RMA) to 

discuss their programs also. 

As a result, approximately 50 percent 

of the comments received as a result of 

these sessions were directed to FSA, 

RMA, RD, and other USDA agencies, 

with many comments specific to hemp 

production and the surrounding 

regulations. Over 40 percent of the 

feedback pertained to NRCS programs. 

Comments listed challenges specific to 

Tribes that impact eligibility and inhibit 

access to USDA programs. None of the 

feedback received necessitated a change 

to the regulation. 

NRCS will continue to work with our 

Tribal stakeholders to address the issues 

raised in order to facilitate greater 

technical assistance and program 

delivery to Indian country. 

Separate from Tribal consultation and 

the sessions discussed above, 

communication and outreach efforts are 

in place to assure that all producers, 

including Tribes (or their members), are 

provided information about the 

regulation changes. Specifically, NRCS 

obtains input through Tribal 

Conservation Advisory Councils. A 

Tribal Conservation Advisory Council 

may be an existing Tribal committee or 

department and may also constitute an 

association of member Tribes organized 

to provide direct consultation to NRCS 

at the State, regional, and national levels 

to provide input on NRCS rules, 

policies, programs, and impacts on 

Tribes. Tribal Conservation Advisory 

Councils provide a venue for agency 

leaders to gather input on Tribal 

interests. 

Unfunded Mandates 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) (Pub. L. 

104–4), requires Federal agencies to 

assess the effects of their regulatory 

actions on State, local, and Tribal 

Governments or the private sector. 

Agencies generally must prepare a 

written statement, including costbenefits analysis, for proposed and final 

rules with Federal mandates that may 

result in expenditures of $100 million or 

more in any 1 year for State, local or 

Tribal Governments, in the aggregate, or 

to the private sector. UMRA generally 

requires agencies to consider 

alternatives and adopt the more costeffective or least burdensome alternative 

that achieves the objectives of the rule. 

This rule contains no Federal mandates, 

as defined under Title II of UMRA, for 

State, local, and Tribal Governments or 

the private sector. Therefore, this rule is 

not subject to the requirements of 

UMRA. 

Federal Assistance Programs 

The title and number of the Federal 

Domestic Assistance Programs in the 

Catalog of Federal Domestic Assistance 

to which this rule applies is: 10.931— 

Agricultural Conservation Easement 

Program. 

E-Government Act Compliance 

NRCS and CCC are committed to 

complying with the E-Government Act, 

to promote the use of the internet and 

other information technologies to 

provide increased opportunities for 

citizen access to Government 

information and services, and for other 

purposes. 

List of Subjects in 7 CFR Part 1466 

Agricultural, Flood Plains, Grazing 

lands, Natural resources, Soil 

conservation, and Wildlife. 

Accordingly, the interim rule 

published January 6, 2020, at 85 FR 558, 

is adopted as final with the following 

changes: 

PART 1468—AGRICULTURAL 

CONSERVATION EASEMENT 

PROGRAM 

■ 1. The authority citation for part 1468 

continues to read as follows: 

Authority: 15 U.S.C. 714b and 714c; 16 

U.S.C. 3865–3865d. 

Subpart A—General Provisions 

§ 1468.3 [Amended] 

■ 2. Amend § 1468.3 as follows: 

■ a. In the definition of ‘‘Beginning 

farmer or rancher’’: 

■ i. In paragraph (1), remove the words 

‘‘farm or ranch or’’ and add in their 

place the words ‘‘farm, ranch, or’’ each 

time they appear; 

■ ii. In paragraphs (2) and (3), remove 

the words ‘‘farm or ranch’’ and add the 

words ‘‘farm, ranch, or NIPF’’ in their 

place each time they appear; 

■ b. In the definition of ‘‘Eligible land’’, 

add the word ‘‘land’’ immediately after 

the word ‘‘private’’; 

■ c. In the definition of ‘‘Farm or ranch 

succession plan’’, remove the words 

‘‘include specific’’ and add the words 

‘‘include, but is not limited to, specific’’ 

in their place and remove the words 

‘‘new or beginning farmers or ranchers, 

veteran farmers, or other’’; 

■ d. In the definition of ‘‘Future 

viability’’, add the words ‘‘or adoption 

of a farm or ranch succession plan’’ 

immediately after the word ‘‘plan’’; and 

■ e. In the second sentence in the 

definition of ‘‘Maintenance’’, add the 

word ‘‘performed’’ immediately after the 

word ‘‘work’’. 

§ 1468.6 [Amended] 

■ 3. Amend § 1468.6 in paragraph 

(a)(3)(iii) by removing the cross 

reference ‘‘paragraph (a)(4)’’ and add in 

its place add the cross reference 

‘‘paragraph (a)(5)’’. 

Subpart B—Agricultural Land 

Easements 

§ 1468.20 [Amended] 

■ 4. Amend § 1468.20 in paragraph 

(b)(1)(ii) by adding the word 

‘‘demonstrated’’ immediately before the 

word ‘‘capability’’. 

■ 5. Amend § 1468.22 as follows. 

■ a. Revise paragraph (b)(11); and 

■ b. In paragraph (c)(2), add the word 

‘‘annually’’ immediately after the words 

‘‘monitored’’ and ‘‘reported’’. 

The revision reads as follows: 

§ 1468.22 Establishing priorities, ranking 

considerations, and project selection. 

* * * * * 

(b) * * * 

(11) Whether the land is currently 

enrolled in CRP in a contract that is set 

to expire within 1 year and is grassland 

that would benefit from protection 

under a long-term easement or is land 

under a CRP contract that is in 

transition to a covered farmer or rancher 

pursuant to 16 U.S.C. 3835(f); 

* * * * * 

§ 1468.23 [Amended] 

■ 6. Amend § 1468.23 as follows: 

■ a. In paragraph (b)(1), remove the 

words ‘‘Up to’’ and add ‘‘A minimum 

of’’ in their place and add the words 

‘‘and not to exceed 7 fiscal years’’ 

immediately after the words ‘‘5 fiscal 

years’’; and 

■ b. In paragraph (b)(2), remove the 

words ‘‘Up to’’ and add ‘‘At least’’ in 

their place. 

■ 7. In § 1468.24 revise paragraphs 

(b)(2)(i), (iii), and (iv) to read as follows: 

§ 1468.24 Compensation and funding for 

agricultural land easements. 

* * * * * 

(b) * * * 

(2) * * * 

(i) The eligible entity’s own cash 

resources for payment of easement 

compensation to the landowner or for a 

buy-protect-sell transaction, the amount 

of the fair market value of the 

agricultural land easement, less the 

amount of the Federal share, that is 

provided through the conveyance of the 


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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 8131 

1Public Law 114–74, Sec. 701, 129 Stat. 584, 599. 

agricultural land easement by the 

eligible entity; 

* * * * * 

(iii) Where the amounts as identified 

in paragraphs (b)(2)(i) and (ii) of this 

section are not sufficient to meet the 

non-Federal share amount, the eligible 

entity may also include the procured 

costs paid by the eligible entity to a 

third-party for an appraisal, boundary 

survey, phase-I environmental site 

assessment, title commitment or report, 

title insurance, baseline reports, mineral 

assessments, or closing cost; and 

(iv) Where the amounts as identified 

in paragraphs (b)(2)(i) through (iii) of 

this section are not sufficient to meet 

the non-Federal share amount, the 

eligible entity may also include up to 2 

percent of the fair market value of the 

agricultural land easement for easement 

stewardship and monitoring costs 

provided by the eligible entity. 

* * * * * 

■ 8. In § 1468.25 revise paragraphs (c) 

and (d)(4) to read as follows: 

§ 1468.25 Agricultural land easement 

deeds. 

* * * * * 

(c) The eligible entity may use its own 

terms and conditions in the agricultural 

land easement deed, but the agricultural 

land easement deed must provide for 

the effective administration, 

management, and enforcement of the 

agricultural land easement by the 

eligible entity or its successors and 

assigns and must address the deed 

requirements as specified by this part 

and by NRCS in the ALE-agreement. 

(d) * * * 

(4) Include clauses requiring that any 

changes to the easement deed or 

easement area made after easement 

recordation, including any amendment 

to the easement deed, any subordination 

of the terms of the easement, or any 

modifications, exchanges, or 

terminations of some or all of the 

easement area, must be consistent with 

the purposes of the agricultural land 

easement and this part and must be 

approved by NRCS and the easement 

holder in accordance with § 1468.6 prior 

to recordation or else the action is null 

and void. 

* * * * * 

§ 1468.26 [Amended] 

■ 9. Amend § 1468.26 in paragraph 

(b)(1) by removing the words ‘‘up to’’ 

and adding ‘‘a minimum of’’ in their 

place and adding ‘‘and not to exceed 7 

fiscal years’’ after the words ‘‘5 fiscal 

years’’. 

■ 10. Amend § 1468.27 as follows: 

■ a. In paragraph (c)(1), add the words 

‘‘the purchase of the land’’ after the 

word ‘‘completed’’; 

■ b. In paragraphs (c)(3)(ii) and (c)(4), 

add the words ‘‘of the land’’ after the 

word ‘‘value’’; 

■ b. Redesignate paragraphs (e)(4)(iii) 

and (iv) as paragraphs (e)(4)(iv) and (v); 

■ c. Add a new paragraph (e)(4)(iii). 

The addition reads as follows: 

§ 1468.27 Buy-Protect-Sell transactions. 

* * * * * 

(e) * * * 

(4) * * * 

(iii) The Federal share for the 

agricultural land easement will be 

provided on a reimbursable basis only, 

after the agricultural land easement has 

closed and the required documents have 

been provided to and reviewed by 

NRCS. 

* * * * * 

■ 11. Amend § 1468.28 as follows: 

■ a. Revise paragraph (c); and 

■ b. In paragraph (f), add the words ‘‘in 

whole or in in part,’’ immediately after 

the word ‘‘terminated’’. 

The revision reads as follows: 

§ 1468.28 Violations and remedies. 

* * * * * 

(c) Notwithstanding paragraph (a) of 

this section, NRCS reserves the right to 

enter upon and inspect the easement 

area if the annual monitoring report 

provided by the agricultural land 

easement holder documenting 

compliance with the agricultural land 

easement is insufficient or is not 

provided annually, the United States 

has a reasonable and articulable belief 

that the terms and conditions of the 

easement have been violated, or to 

remedy deficiencies or easement 

violations as it relates to the 

conservation plan in accordance with 7 

CFR part 12. Prior to its inspection, 

NRCS will notify the agricultural land 

easement holder and the landowner and 

provide a reasonable opportunity for the 

agricultural land easement holder and 

the landowner to participate in the 

inspection. 

* * * * * 

Subpart C—Wetland Reserve 

Easements 

§ 1468.32 [Amended] 

■ 12. Amend § 1468.32 in paragraph 

(c)(2) by adding the words ‘‘or land 

under a CRP contract that is in 

transition to a covered farmer or rancher 

pursuant to 16 U.S.C. 3835(f), and such 

land’’ immediately after the word 

‘‘application’’. 

Terry Cosby, 

Acting Chief, Natural Resources Conservation 

Service. 

Robert Stephenson, 

Executive Vice President, Commodity Credit 

Corporation. 

[FR Doc. 2021–02268 Filed 2–3–21; 8:45 am] 

BILLING CODE 3410–16–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 250 and 385 

[Docket No. RM21–8–000; Order No. 875] 

Civil Monetary Penalty Inflation 

Adjustments 

AGENCY: Federal Energy Regulatory 

Commission, Department of Energy 

(DOE). 

ACTION: Final rule. 

SUMMARY: The Federal Energy 

Regulatory Commission (Commission) is 

issuing a final rule to amend its 

regulations governing the maximum 

civil monetary penalties assessable for 

violations of statutes, rules, and orders 

within the Commission’s jurisdiction. 

The Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended 

most recently by the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015, requires the 

Commission to issue this final rule. 

DATES: This final rule is effective 

February 4, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Todd Hettenbach, Attorney, Office of 

Enforcement, Federal Energy Regulatory 

Commission, 888 First Street NE, 

Washington, DC 20426. Phone: (202) 

502–8794; email: Todd.Hettenbach@

ferc.gov. 

SUPPLEMENTARY INFORMATION: 

1. In this final rule, the Federal 

Energy Regulatory Commission 

(Commission) is complying with its 

statutory obligation to amend the civil 

monetary penalties provided by law for 

matters within the agency’s jurisdiction. 

I. Background 

2. The Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015 (2015 Adjustment Act),1

which further amended the Federal 

Civil Penalties Inflation Adjustment Act 


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