11032 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Commodity Credit Corporation 

7 CFR Part 1468 

RIN 0578–AA61 

[Docket No. NRCS–2014–0011] 

Agricultural Conservation Easement 

Program 

AGENCY: Natural Resources 

Conservation Service (NRCS) and the 

Commodity Credit Corporation (CCC), 

United States Department of Agriculture 

(USDA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Agricultural Act of 2014 

(the 2014 Act) consolidates the purposes 

of the Farm and Ranch Lands Protection 

Program (FRPP), Grassland Reserve 

Program (GRP), and Wetlands Reserve 

Program (WRP) into one easement 

program called the Agricultural 

Conservation Easement Program 

(ACEP). ACEP restores, protects, and 

enhances wetland on eligible land; 

protects the agricultural use, viability, 

and related conservation values of 

eligible land by limiting nonagricultural uses of that land; and 

protects grazing uses and related 

conservation values by restoring and 

conserving eligible land. This interim 

rule with request for comments sets 

forth the policies and procedures related 

to implementation of ACEP as 

authorized by the 2014 Act. Since the 

Conservation Farm Option (CFO) is a 

repealed program that was never 

implemented, NRCS is replacing the 

CFO regulations at 7 CFR part 1468 with 

the regulations necessary to implement 

ACEP. 

DATES: Effective date: The rule is 

effective February 27, 2015. 

Comment date: Submit comments on 

or before April 28, 2015. Comments will 

be made available to the public or 

posted publicly in their entirety. 

ADDRESSES: You may submit comments 

by one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

for Docket No. NRCS–2014–0011. 

• U.S. mail or hand delivery: Public 

Comments Processing, Attn: Docket No. 

NRCS–2014–0011, Regulatory and 

Agency Policy Team, Strategic Planning 

and Accountability, U.S. Department of 

Agriculture, Natural Resources 

Conservation Service, 5601 Sunnyside 

Avenue, Building 1–1112D, Beltsville, 

MD 20705. 

NRCS will post all comments on 

http://www.regulations.gov. Personal 

information provided with comments 

will be posted. If your comment 

includes your address, phone number, 

email address, or other personal 

identifying information, please be aware 

that your entire comment, including this 

personal information, will be made 

publicly available. Do not include 

personal information with your 

comment submission if you do not wish 

for it to be made public. This interim 

rule may be accessed via Internet. Users 

can access the NRCS homepage at: 

http://www.nrcs.usda.gov/; select the 

Farm Bill link from the menu; select the 

Interim final link from beneath the Final 

and Interim rules Index title under the 

heading ‘‘2014 NRCS Farm Bill 

Conservation Program Rules.’’ Select 

Agricultural Conservation Easement 

Program. 

FOR FURTHER INFORMATION CONTACT: Kim 

Berns, 202–720–1882. 

Persons with disabilities who require 

alternative means for communication 

(Braille, large print, audio tape, etc.) 

should contact the USDA TARGET 

Center at: 202–720–2600 (voice and 

TDD). 

SUPPLEMENTARY INFORMATION: 

Regulatory Certifications 

Executive Order 12866 and 13563 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ directs 

agencies to assess all costs and benefits 

of available regulatory alternatives and, 

if regulation is necessary, to select 

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. Upon 

implementation of this rule the Natural 

Resources Conservation Service intends 

to conduct a retrospective review of this 

rule with the purpose of improving 

program performance, and better 

understanding the longevity of 

conservation implementation. 

The Office of Management and Budget 

(OMB) designated this interim rule, 

with request for comment, a significant 

regulatory action. The administrative 

record is available for public inspection 

at the Department of Agriculture, 

Natural Resources Conservation Service, 

1400 Independence Avenue SW., Room 

5831 South Building, Washington, DC. 

In accordance with Executive Order 

12866, NRCS conducted an economic 

analysis of the potential impacts 

associated with this program. A 

summary of the economic analysis can 

be found at the end of this preamble, 

and a copy of the analysis is available 

upon request from Kim Berns, Director, 

Easement Programs Division, U.S. 

Department of Agriculture, Natural 

Resources Conservation Service, Post 

Office Box 2890, Washington, DC 

20013–2890; or at: http://

www.nrcs.usda.gov/programs/acep/ 

under ACEP Rules and Notices with 

Supporting Documents. 

Executive Order 12866, as 

supplemented by Executive Order 

13563, requires each agency to write all 

rules in plain language. In addition to 

your comments on this interim rule, we 

invite your comments on how to make 

the provisions easier to understand. For 

example: 

• Are the requirements in the rule 

clearly stated? Are the scope and intent 

of the rule clear? 

• Does the rule contain technical 

language or jargon that is not clear? 

• Is the material logically organized? 

• Would changing the grouping or 

order of sections or adding headings 

make the rule easier to understand? 

• Could we improve clarity by adding 

tables, lists, or diagrams? 

• Would more, but shorter, sections 

be better? Are there specific sections 

that are too long or confusing? 

• What else could we do to make the 

rule easier to understand? 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601–612) (RFA) generally 

requires an agency to prepare a 

regulatory flexibility analysis of any rule 

subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute. NRCS did not prepare a 

regulatory flexibility analysis for this 

rule because NRCS is not required by 5 

U.S.C. 553, or any other provision of 

law, to publish a notice of proposed 

rulemaking with respect to the subject 

matter of this rule. Even so, NRCS has 

determined that this action, while 

mostly affecting small entities, will not 

have a significant economic impact on 

a substantial number of these small 

entities. NRCS made this determination 

based on the fact that this regulation 

only impacts those who choose to 

participate in the program. Small entity 

applicants will not be affected to a 

greater extent than large entity 

applicants. 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 11033 

Congressional Review Act 

Section 1246(c) of the Food Security 

Act of 1985 (the 1985 Act), as amended 

by Section 2608 of the Agricultural Act 

of 2014, requires that the Secretary of 

Agriculture use the authority in section 

808(2) of title 5, United States Code, 

which allows an agency to forego 

Congressional Review Act usual 60-day 

Congressional Review delay of the 

effective date of a major regulation if the 

agency finds that there is a good cause 

to do so. NRCS hereby determines that 

it has good cause to do so in order to 

meet the Congressional intent to have 

the conservation programs, authorized 

or amended under Title XII of the 1985 

Act, in effect as soon as possible. NRCS 

also determined it has good cause to 

forgo delaying the effective date given 

the critical need to let agricultural 

producers know what programmatic 

changes are being made so that they can 

make financial plans accordingly prior 

to planting season. For these reasons, 

this rule is effective upon publication in 

the Federal Register. 

Environmental Analysis 

A programmatic Environmental 

Assessment (EA) has been prepared in 

association with this rulemaking. The 

analysis has determined there will 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 

1508.13). The EA and Finding of No 

Significant Impact (FONSI) are available 

for review and comment for 30 days 

from the date of publication of this 

interim rule in the Federal Register. 

NRCS will consider this input and 

determine whether there is any new 

information provided that is relevant to 

environmental concerns and bearing on 

the proposed action or its impacts that 

warrant supplementing or revising the 

current available draft of the ACEP EA 

and FONSI. 

A copy of the EA and Finding of No 

Significant Impact (FONSI) may be 

obtained from the following Web site: 

http://www.nrcs.usda.gov/ea. A hard 

copy may also be requested in one of the 

following ways: (1) Email: 

andree.duvarney@wdc.usda.gov with 

‘‘Request for EA’’ in the subject line; or 

(2) written request: National 

Environmental Coordinator, Natural 

Resources Conservation Service, 

Ecological Sciences Division, Post 

Office Box 2890, Washington, DC 

20013–2890. Comments should be 

specific and indicate that comments 

provided are on the EA and FONSI. 

Public comment on the environmental 

analysis only may be submitted by any 

of the following means: (1) Email 

comments to andree.duvarney@

wdc.usda.gov, (2) go to http://

www.regulations.gov and follow the 

instructions for submitting comments 

for Docket No. NRCS–2014–0011, or (3) 

mail written comments to: National 

Environmental Coordinator, Natural 

Resources Conservation Service, 

Ecological Sciences Division, Room 

6159–S, P.O. Box 2890, Washington, DC 

20013–2890. 

Civil Rights Impact Analysis 

USDA has determined through a Civil 

Rights Impact Analysis that this interim 

rule discloses no disproportionately 

adverse impacts for minorities, women, 

or persons with disabilities. The data 

presented in the Civil Rights Impact 

Analysis indicate producers who are 

members of the protected groups have 

participated in NRCS conservation 

programs at parity with other producers. 

Extrapolating from historical 

participation data, it is reasonable to 

conclude that ACEP will be 

administered in a nondiscriminatory 

manner as the predecessor programs 

have been. Outreach and 

communication strategies are in place to 

ensure all producers will be provided 

the same information to allow them to 

make informed compliance decisions 

regarding the use of their lands that will 

affect their participation in U.S. 

Department of Agriculture (USDA) 

programs. NRCS conservation programs 

apply to all persons equally regardless 

of their race, color, national origin, 

gender, sex, or disability status. 

Therefore, this interim rule portends no 

adverse civil rights implications for 

women, minorities, and persons with 

disabilities. Copies of the Civil Rights 

Impact Analysis are available, and may 

be obtained from Kim Berns, Director, 

Easement Programs Division, U.S. 

Department of Agriculture, Natural 

Resources Conservation Service, Post 

Office Box 2890, Washington, DC 

20013–2890, or electronically at: 

http://www.nrcs.usda.gov/programs/

ACEP. 

Paperwork Reduction Act 

Section 1246 of the Food Security Act 

of 1985 (the 1985 Act) as amended by 

the Agricultural Act of 2014 (the 2014 

Act) requires that the implementation of 

this provision be carried out without 

regard to the Paperwork Reduction Act, 

chapter 35 of Title 44, U.S.C. Therefore, 

NRCS is not reporting recordkeeping or 

estimated paperwork burden associated 

with this interim rule. 

Government Paperwork Elimination 

Act 

NRCS is committed to compliance 

with the Government Paperwork 

Elimination Act and the Freedom to EFile Act, which require government 

agencies, in general, to provide the 

public the option of submitting 

information or transacting business 

electronically to the maximum extent 

possible. 

Federal Crop Insurance Reform and 

Department of Agriculture 

Reorganization Act of 1994 

Pursuant to section 304 of the Federal 

Crop Insurance Reform Act of 1994 

(Pub. L. 103–354), USDA classified this 

rule as non-major. Therefore, a risk 

analysis was not conducted. 

Unfunded Mandates Reform Act of 

1995 

Pursuant to Title II of the Unfunded 

Mandates Reform Act of 1995, Public 

Law 104–4, USDA assessed the effects 

of this interim rule on State, local, and 

Tribal governments, and the public. 

This rule does not compel the 

expenditure of $100 million or more by 

any State, local, or Tribal governments 

or anyone in the private sector; 

therefore, a statement under section 202 

of the Unfunded Mandates Reform Act 

of 1995 is not required. 

Executive Order 13132 

This interim rule has been reviewed 

in accordance with the requirements of 

Executive Order 13132, Federalism. 

NRCS has determined that this interim 

rule conforms with the Federalism 

principles set forth in the Executive 

Order; would not impose any 

compliance costs on the States; and 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities on the 

various levels of government. Therefore, 

NRCS concludes that this interim rule 

does not have Federalism implications. 

Executive Order 13175 

This interim rule has been reviewed 

in accordance with the requirements of 

Executive Order 13175, Consultation 

and Coordination with Indian Tribal 

Governments. Executive Order 13175 

required 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 been substantial direct effects on 

(1) one or more Indian Tribes, (2) the 


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11034 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

Relationship between the Federal 

Government and Indian Tribes, or (3) 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. NRCS 

has assessed the impact of this interim 

rule on Indian Tribes and determined 

that this rule does not have Tribal 

implication that requires Tribal 

consultation under EO 13175. The rule 

neither imposes substantial direct 

compliance costs on Tribal governments 

nor preempts Tribal law. The agency 

has developed an outreach/

collaboration plan that it will 

implement as it develops its Farm Bill 

policy. If a Tribe requests consultation, 

NRCS will work with the Office of 

Tribal Relations to ensure meaningful 

consultation is provided where changes, 

additions, and modifications identified 

herein are not expressly mandated by 

Congress. 

Registration and Reporting 

Requirements of the Federal Funding 

and Transparency Act of 2006 

OMB published two regulations, 

codified at 2 CFR part 25 and 2 CFR part 

170, to assist agencies and recipients of 

Federal financial assistance in 

complying with the Federal Funding 

Accountability and Transparency Act of 

2006 (FFATA) (Pub. L. 109–282, as 

amended). Both regulations have 

implementation requirements effective 

as of October 1, 2010. 

The regulations at 2 CFR part 25 

require, with some exceptions, 

recipients of Federal financial assistance 

to apply for and receive a Dun and 

Bradstreet Universal Numbering 

Systems (DUNS) number and register in 

System Award Management (SAM). The 

regulations at 2 CFR part 170 establish 

new requirements for Federal financial 

assistance applicants, recipients, and 

subrecipients. The regulation provides 

standard wording that each agency must 

include in its awarding of financial 

assistance that requires recipients to 

report information about first-tier 

subawards and executive compensation 

under those awards. 

NRCS has determined that 2 CFR part 

25 and 2 CFR part 170 applies to ACEP 

financial assistance provided to entities. 

Therefore, NRCS has incorporated, by 

reference, these registration and 

reporting requirements into the ACEP 

regulations and will continue to include 

the requisite provisions as part of 

assistance agreements. 

Background 

The Agricultural Conservation 

Easement Program (ACEP) is a voluntary 

program to help farmers and ranchers 

preserve their agricultural land and 

restore, protect, and enhance wetlands 

on eligible lands. The program has two 

easement enrollment components: (1) 

Agricultural land easements; and (2) 

wetland reserve easements. Under the 

agricultural land easement component, 

NRCS provides matching funds to State, 

Tribal, and local governments, and 

nongovernmental organizations with 

farm and ranch land protection 

programs to purchase permanent 

agricultural land easements. Under the 

wetland reserve easement component, 

NRCS protects wetlands by purchasing 

directly from owners a reserved interest 

in eligible land 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, or the 

maximum duration authorized by State 

law. 

The 2014 Act kept much of the 

substance of the statutory provisions 

that originally existed for the Wetlands 

Reserve Program (WRP) and Farm and 

Ranch Lands Protection Program 

(FRPP), with land eligibility elements 

from the Grassland Reserve Program 

(GRP) incorporated. In particular, ACEP 

as authorized by the 2014 Act: 

• Consolidates FRPP, GRP, and WRP 

easement options into one program, and 

repeals these three programs; and 

• Incorporates elements of FRPP and 

GRP into the agricultural land easement 

component of ACEP, and elements of 

WRP into the wetland reserve easement 

component of ACEP. 

ACEP provisions are organized by 

those provisions that affect the entire 

program, provisions that affect only the 

Agricultural Land Easement component, 

and provisions that affect only the 

Wetlands Reserve Easement component. 

Provisions that affect the entire program 

include: 

• Identification of the following lands 

as ineligible— 

Æ Federal lands except lands held in 

trust for Indian Tribes. 

Æ State-owned lands, including lands 

owned by agencies or subdivisions of 

the State or unit of local government. 

Æ Land subject to an existing 

easement or deed restriction that 

provides similar protection that would 

be achieved by enrollment. 

Æ Lands that have onsite or offsite 

conditions which would undermine 

meeting the purposes of the program. 

• Authorization for easement 

subordination, modification, exchange, 

termination of easements under specific 

criteria. 

• Identification that lands enrolled in 

FRPP, GRP, and WRP are considered 

enrolled in ACEP. 

• Transition of contracts, agreements, 

and easements entered into prior to 

October 1, 2013, creating a pool of funds 

from each of the original programs to 

address existing enrollments, to remain 

available until expended. 

Provisions that affect only the 

Agricultural Land Easement Component 

include: 

• Limiting the Federal share of the 

easement cost for projects that are not 

grasslands of special environmental 

significance to not exceed 50 percent of 

the fair market value of the agricultural 

land easement, while requiring the nonFederal share to be at least equivalent to 

the Federal share, with an eligible entity 

contributing at least 50 percent of the 

Federal share with its own cash 

resources. Eligible entities may include 

Indian Tribes, State governments, local 

governments, or nongovernmental 

organizations which have farmland or 

grassland protection programs that 

purchase agricultural land easements. 

• Protecting grasslands of special 

environmental significance by 

authorizing NRCS to pay up to 75 

percent of the fair market value of the 

agricultural land easement for the 

enrollment of such grasslands. 

• Providing flexibility for projects of 

special significance by authorizing 

NRCS to waive the eligible entity cash 

contribution requirement with no 

increase in Federal share where the 

landowner voluntarily increases the 

landowner contribution commensurate 

to the amount of the waiver and the 

property is in active agricultural 

production. 

• Maintaining a certification process 

for eligible entities. 

• Prohibiting the assigning of a higher 

priority to an application solely on the 

basis of lesser cost to the program. 

• Requiring all easements to be 

subject to an agricultural land easement 

plan. 

Provisions that affect only the 

Wetland Reserve Easement Component 

include: 

• Maintaining most elements of WRP 

eligibility and administrative 

framework. 

• Authorizing a waiver process to 

allow enrollment of Conservation 

Reserve Program (CRP) lands 

established to trees. 

• Allowing ranking criteria to 

consider the extent to which a 

landowner or other person or entity 

leverages the Federal investment. 

• Reducing length of ownership 

requirement prior to enrollment from 7 

years to 24 months. 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 11035 

• Keeping WRP easement 

compensation framework for wetland 

reserve easements. 

The enrollment options under ACEP 

differ slightly from the source programs 

because ACEP does not incorporate GRP 

rental agreements or the authority for 

the Secretary of Agriculture to directly 

purchase and hold grassland easements; 

requires a State or other entity to 

provide 50 percent of the WREeasement cost for lands meeting the 

closed basin lake WRE eligibility 

criteria; and eliminates the stand-alone 

wetland Restoration Cost-Share 

Agreements without an associated 

easement. 

With these slight differences 

acknowledged, NRCS is incorporating 

the substance of many of the regulatory 

provisions of FRPP and WRP originally 

promulgated at 7 CFR part 1491 and 7 

CFR part 1467, respectively in this 

regulation. However, ACEP is a 

consolidated program, and therefore, 

NRCS has organized these provisions 

into three subparts. Subpart A contains 

provisions that apply to both 

agricultural land easements and to 

wetland reserve easements and 30-year 

contracts; subpart B contains provisions 

specific to the implementation of 

agricultural land easements; and subpart 

C contains provisions specific to the 

implementation of wetland reserve 

easements and 30-year contracts. These 

subparts, and their constituent 

provisions, are described more fully 

below, including a discussion about 

how NRCS will exercise provisions that 

are new or different from the 

predecessor programs. 

Subpart A—General Provisions 

§ 1468.1 Applicability 

This section sets forth the 

requirements, policies, and procedures 

for ACEP; identifies that ACEP is 

available in all 50 States, District of 

Columbia, and certain territories; 

describes how the remainder of the 

regulation is organized; and addresses 

stewardship responsibilities associated 

with existing easements. 

§ 1468.2 Administration 

This section identifies that ACEP is 

administered under the general 

supervision and direction of the NRCS 

Chief, who is a Vice President of the 

Commodity Credit Corporation (CCC), 

and sets forth the roles and 

responsibilities of NRCS staff and other 

agencies that assist with ACEP 

implementation. 

§ 1468.3 Definitions 

The purpose of the definitions section 

set forth at § 1468.3 is to ensure 

consistent interpretation of the terms 

used throughout the regulation. These 

definitions are the same definitions that 

were used to implement FRPP or WRP 

with adjustments made, where needed, 

to further the purposes of ACEP as 

authorized by the 2014 Act. 

The definitions of ‘‘30-year contract’’ 

and ‘‘Acreage Owned by Indian Tribes’’ 

are the same definitions that were used 

in WRP and are included to implement 

the 30-year contract enrollment option 

under subpart C. 

The definition of ‘‘Access’’ is 

included to clarify what constitutes 

sufficient legal access to ensure that the 

purposes of the program can be 

achieved and federal investment in the 

easement can be enforced for the 

duration of the easement. This 

definition allows NRCS to provide 

additional flexibility under ALE than is 

available for the Federally-held 

easements under WRE. NRCS welcomes 

public comment on whether NRCS 

should adopt this greater flexibility for 

eligible entities on what constitutes 

sufficient access for ALE easements and 

what specific conditions should be 

considered sufficient access under ALE 

to ensure the federal investment is 

protected? 

The definition of ‘‘Active agricultural 

production’’ is included to establish the 

parameters of the requirement that the 

land be in active agricultural production 

to qualify as a project of special 

significance under subpart B of this 

part. 

The definition of ‘‘Agreement’’ is 

included to identify any document that 

specifies the rights of NRCS and a 

person or legal entity participating in 

ACEP. This term formerly was only 

defined in WRP. 

The definition of ‘‘Agreement to 

purchase’’ is included to identify the 

document that NRCS uses to obligate 

funding for the acquisition of a wetland 

reserve easement and proceed with 

easement acquisition activities. 

The definition of ‘‘Agricultural 

commodity’’ is included since it is part 

of the statutory and regulatory 

definition of ‘‘legal entity.’’ 

The definition of ‘‘Agriculture uses’’ 

uses a more universal term of ‘‘farm or 

ranch land protection program’’ than 

was used under FRPP to ensure that 

programs that have the principal 

purpose of protecting grasslands or 

grazing uses are included. NRCS will 

refer to the State definition of 

agricultural use found in either its farm 

and ranch land protection program or 

tax assessment authority, but reserves 

the right to impose deed restrictions to 

comply with Federal law or to protect 

soil or related natural resources. For 

example, some States have identified 

that sod farming or turf operations are 

an agricultural use despite such 

activities representing an unsustainable 

mining of valuable topsoil resources, 

and therefore, NRCS reserves its right to 

require that such activities be prohibited 

in the terms of an Agriculture Land 

Easement (ALE) funded with ACEP 

funds. 

The definition of ‘‘Agricultural Land 

Easement’’ is included to identify the 

type of conservation easement that is 

funded pursuant to the policies and 

procedures under subpart B. 

The definition of ‘‘Agricultural Land 

Easement Plan’’ is included to identify 

the document that NRCS will use to 

meet the requirements of section 

1265B(b)(4)(C)(iv) of the 1985 Act, 

which requires land enrolled under 

subpart B to be subject to an agricultural 

land easement plan. All ACEPAgricultural Land Easement (ALE) 

enrollments must have an agricultural 

land easement plan and may also 

incorporate by reference any required 

component plans needed to address 

particular land types or resource issues 

on the enrolled parcel, such as a 

grasslands management plan on 

grassland, a forest management plan for 

certain forest land, or a conservation 

plan for highly erodible cropland. The 

agricultural land easement plan and any 

associated component plans are 

collectively referred to as the 

agricultural land easement plan. The 

agricultural land easement plan must 

promote the long-term viability of the 

land to meet the purposes for which the 

easement was acquired. The eligible 

entity is responsible for the 

development of an agricultural land 

easement plan, though NRCS may 

provide technical assistance in the 

development of the agricultural land 

easement plan or any of the component 

plans. The eligible entity is responsible 

to annually monitor compliance and 

provide NRCS an annual monitoring 

report that documents that the 

landowner and eligible entity are in 

compliance with the terms of easement 

deeds, including the agricultural land 

easement plan. 

The definition of ‘‘Beginning farmer 

or rancher’’ is included to meet program 

outreach purposes and is consistent 

with how the term is identified in 

USDA programs. 

The term ‘‘Certified entities’’ is added 

to meet the statutory requirement 

providing for an eligible entity 

certification process. Certification of 

‘‘eligible entities’’ is discussed in the 

description of § 1468.27. 

The term ‘‘Chief’’ existed in both 

FRPP and WRP, and is the official who 


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11036 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

has been delegated administrative 

responsibility for ACEP by the Secretary 

of Agriculture. 

The terms for ‘‘Commenced 

conversion wetland,’’ ‘‘Converted 

wetland,’’ ‘‘Lands substantially altered 

by flooding,’’ ‘‘Riparian areas,’’ 

‘‘Wetlands,’’ and ‘‘Wetland functions 

and values’’ were defined terms under 

WRP and are incorporated in this 

rulemaking as applicable to the land 

eligibility requirements for enrollment 

of wetland reserve easements and 30- 

year contracts under subpart C. 

The definition of ‘‘Commodity Credit 

Corporation’’ is included since ACEP is 

funded through CCC and since the Chief 

serves as a Vice-President of the CCC. 

The definition of ‘‘Compatible use’’ is 

included to describe the mechanism 

through which NRCS may authorize the 

implementation of activities that NRCS 

determines are consistent with the longterm purposes of a wetland reserve 

easement. 

The definition of ‘‘Conservation plan’’ 

is included since section 

1265B(b)(4)(C)(iv)(III) requires that 

highly erodible cropland enrolled in an 

agricultural land easement must be 

subject to a conservation plan 

developed pursuant to the requirements 

under 7 CFR part 12. 

The definition of ‘‘Conservation 

practice’’ is included since NRCS may 

provide technical assistance for the 

development of agricultural land 

easement plans for lands enrolled in 

ACEP–ALE and will provide technical 

and financial assistance for the planning 

and implementation of conservation 

practices on lands enrolled in ACEPWetland Reserve Easement (WRE). 

The definition of ‘‘Conservation 

Reserve Program’’ is included since 

lands enrolled in CRP are eligible for 

enrollment in ACEP, with priority 

provided for enrollment in ACEP–ALE 

of grasslands leaving CRP and for 

enrollment in the ACEP-WRE of high 

value wetlands that are likely to return 

to production upon leaving CRP. 

The term ‘‘Cooperative agreement’’ is 

included to define the document that 

specifies the obligations and rights of 

NRCS and the eligible entities related to 

the purchase of an agricultural land 

easement under subpart B. 

The term ‘‘Cost-share payment’’ is 

added to refer to a payment for program 

implementation that NRCS provides to 

an eligible entity related to the purchase 

of an agricultural land easement under 

subpart B. 

The term ‘‘Dedicated fund’’ is added 

and describes an account that can only 

be used for the purposes of 

management, monitoring, and 

enforcement of agricultural land 

easements. This requirement applies to 

nongovernmental organizations who 

seek to become ‘‘certified entities’’ 

under subpart B and serves as evidence 

of their capacity to ensure the long-term 

protection of easements. 

Definitions for ‘‘Easement exchange,’’ 

‘‘Easement modification,’’ ‘‘Easement 

subordination,’’ and ‘‘Easement 

termination’’ have been added to 

address the various ways that NRCS 

may address the long-term management 

and administration of the easements 

rights it has in lands enrolled in ACEP. 

The definition of ‘‘Easement 

payment’’ is included to identify the 

payment that is made by NRCS to a 

landowner under ACEP–WRE. 

The definition of ‘‘Easement 

restoration agreement’’ is included to 

encompass any of the legal 

arrangements NRCS may enter into to 

effect the restoration of any area 

enrolled in ACEP–WRE under subpart 

C. Section 1265C(d) identifies that 

NRCS may ‘‘enter into one or more 

contracts with private entities or 

agreements with a State, 

nongovernmental organization, or 

Indian Tribe to carry out necessary 

restoration, enhancement or 

maintenance of a wetland reserve 

easement if the Secretary of Agriculture 

determines that the contract or 

agreement will advance the purposes of 

the program.’’ 

The definition of ‘‘Eligible activity’’ is 

included to address actions that may be 

included in a Wetland Reserve Plan of 

Operation (WRPO) to further the 

wetland functions and values of lands 

enrolled under subpart C. The former 

WRP rule referred to this plan as the 

Wetlands Restoration Plan of 

Operations. 

The definition of ‘‘Eligible entity’’ is 

included to identify the entities who are 

eligible to receive assistance under 

ACEP–ALE as described in subpart B. 

The definition of ‘‘Eligible land’’ is 

included to identify lands that are 

eligible for assistance under ACEP as 

specified in subparts B and C. 

The definition of ‘‘Fair market value’’ 

is included to refer to the basis upon 

which NRCS will base its cost-share 

payment to an eligible entity under 

ACEP–ALE and its easement payment 

under ACEP–WRE. 

The definition of ‘‘Farm and ranch 

land of statewide importance’’ is 

included to provide greater specificity 

to the existing umbrella term ‘‘other 

productive soils.’’ This definition is the 

technical definition of this land type 

which is subsumed in the general term 

‘‘other productive soils.’’ 

The definition of ‘‘Farm and ranch 

land of local importance’’ is added for 

the same reason discussed above under 

‘‘Farm and ranch land of statewide 

importance.’’ 

The definition of ‘‘Farm or ranch 

succession plan’’ is included to assist 

with identification of parcels that may 

receive priority consideration since the 

landowners had taken action to ensure 

the long-term viability of the 

agricultural use of the parcel. 

The definition of ‘‘Farm Service 

Agency (FSA)’’ is included since NRCS 

coordinates with FSA on many program 

matters, including land and landowner 

eligibility criteria. 

The definition of ‘‘Field Office 

Technical Guide (FOTG)’’ is included to 

provide consistency with the way the 

term is defined in other NRCS program 

regulations. 

The definition of ‘‘Fish and Wildlife 

Service (FWS)’’ is included since NRCS 

coordinates with Department of the 

Interior’s Fish and Wildlife Service at 

the local level on several matters related 

to wetland reserve easements and 

contracts with Indian Tribes. 

The definition of ‘‘Forest land’’ is 

included since it is identified as land 

category eligible for enrollment in 

ACEP–ALE. 

The term ‘‘Forest management plan’’ 

is included to identify the 

documentation required to demonstrate 

forest land eligibility for agricultural 

land easements, when the ‘‘forest land’’ 

is being enrolled under the ‘‘contributes 

to the economic viability of the 

agricultural operation’’ land eligibility 

category. NRCS is using the ‘‘forest 

management plan’’ as documentation 

for eligibility, rather than requiring 

submission of receipts or tax returns 

which may be viewed as intrusive. The 

definition is consistent with the way the 

term is defined in other NRCS program 

regulations. Additionally, a forest 

management plan is a component of an 

agricultural land easement plan as 

described above. 

The term ‘‘Grassland of special 

environmental significance’’ is included 

since section 1265B of the 1985 Act 

authorizes NRCS to provide additional 

cost-share assistance for the purchase of 

an agricultural land easement by an 

eligible entity on land that is grassland 

of special environmental significance. 

NRCS has defined grassland of special 

environmental significance in this 

interim rule as ‘‘grasslands that contain 

little or no noxious or invasive species; 

are subject to threat of conversion to 

nongrassland uses or are subject to 

fragmentation; and the land is 

rangeland, pastureland, or shrubland on 

which the vegetation is dominated by 

native grasses, grass-like plants, shrubs, 

or forbs, or is improved, naturalized 


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pastureland and rangeland. In addition, 

these must be lands that provide, or 

could provide, habitat for threatened, 

endangered species or at-risk species; 

protect sensitive or declining native 

prairie or grassland types; or provide 

protection of highly sensitive natural 

resources.’’ 

The definition of ‘‘Grasslands 

management plan’’ is similar to the 

definition that existed in the GRP 

regulation, and such a plan is required 

by section 1265B(b)(4)(C)(iv)(II) of the 

1985 Act for grasslands subject to an 

agricultural land easement. 

The definition of ‘‘Historical and 

archaeological resources’’ includes 

resources related to parcels listed in the 

National Register of Historic Places, but 

can include lands listed in the State 

Historic Preservation Office or Tribal 

Historic Preservation Office inventory 

with written justification as to why the 

resource meets the National Register of 

Historic Places criteria. This definition 

recognizes preservation efforts of State, 

Tribal, and local preservation offices. 

The definition of ‘‘Historically 

underserved landowner’’ is included to 

further the outreach purposes of ACEP. 

The definition of ‘‘Imminent harm’’ is 

included to help identify situations 

where NRCS may exercise its right of 

enforcement on agricultural land 

easements. 

The definition of ‘‘Impervious 

surface’’ is included since the terms of 

an agricultural land easement under 

subpart B must specify an impervious 

surface limitation appropriate for the 

agricultural operation. 

The definition of ‘‘Indian Tribe’’ is 

consistent with how the term has been 

defined in the previous FRPP and WRP 

regulations. However, the term 

‘‘pueblo’’ has been added consistent 

with other conservation programs. 

‘‘Pueblo’’ is a type of collective 

ownership already encompassed by the 

statutory definition of Indian Tribe, but 

clarification was sought by commenters 

in prior rulemaking efforts. 

The definition of the ‘‘Land 

Evaluation and Site Assessment 

System’’ is included since it is the land 

evaluation system used to rank land for 

farm and ranch land protection 

purposes. 

The definition of ‘‘Landowner’’ is 

included since conservation easements, 

whether through an agricultural land 

easement or a wetland reserve easement, 

is a real property transaction which 

requires the participation by the fee title 

landowner. The definition of 

‘‘landowner’’ is adopted from the WRP 

regulation and is included to clarify that 

a landowner may be a ‘‘person, legal 

entity, or Indian Tribe.’’ An Indian Tribe 

does not meet the definition of person 

or legal entity as defined by section 

1201 of the 1985 Act, and thus, needs 

to be included in order to ensure full 

participation in ACEP. 

The definition of ‘‘Legal entity’’ is 

included since ACEP payment 

eligibility requirements apply to persons 

and legal entities. 

The definition of ‘‘Limited Resource 

Farmer or Rancher’’ is included as an 

embedded term in the definition of 

‘‘Historically Underserved Landowner.’’ 

The definition of ‘‘Maintenance’’ is 

included to identify actions necessary to 

be conducted on lands enrolled in the 

program to meet program purposes. 

The term ‘‘Natural Resources 

Conservation Service’’ existed in both 

the FRPP and WRP regulations. 

However, the WRP definition more fully 

describes NRCS relationship to CCC, 

and therefore, has been adopted for use 

in ACEP. ACEP is funded through the 

CCC. 

The definition of ‘‘Nongovernmental 

organization’’ is included in accordance 

with the 2014 Act that identifies the 

types of agencies and organizations that 

may qualify as an eligible entity under 

subpart B. 

The definition of ‘‘Other interests in 

land’’ is included to clarify interests in 

land other than easements NRCS may 

provide cost-share assistance to an 

eligible entity to purchase under subpart 

B. However, NRCS requires that an 

eligible entity obtain prior approval 

from the Chief before rights or interests 

in land other than an agricultural land 

easement are funded under subpart B. 

The definition of ‘‘Other productive 

soils’’ is included to identify that the 

term is restricted to farm and ranch land 

soils that are considered ‘‘unique 

farmland’’ and ‘‘farm and ranch land of 

statewide and local importance.’’ The 

terms ‘‘unique farmland,’’ ‘‘farm and 

ranch land of statewide importance,’’ 

and ‘‘farm and ranch land of local 

importance’’ are defined separately 

rather than within the definition of 

‘‘other productive soils.’’ The change 

was made to provide specific definitions 

for these types of land. 

The definition of ‘‘Parcel’’ is included 

to simplify the language used to identify 

an area of land that is either subject to 

an application or enrollment under 

ACEP. 

The definition of ‘‘Participant’’ is 

included as it identifies who may be 

accepted for participation in ACEP. 

The definition of ‘‘Pending offer’’ is 

included since a parcel must be subject 

to a written pending offer by an eligible 

entity in order to be eligible for costshare assistance under subpart B. 

The definition of ‘‘Permanent 

easement’’ is included to clarify that the 

duration for easements enrolled as 

‘‘permanent easements’’ under ACEP is 

perpetual. Wetland reserve easements 

that are for a duration that is the 

maximum authorized by State law, but 

are not perpetual, will be subject to the 

same payment rates as 30-year wetland 

reserve easements. 

The definition of ‘‘Prime farmland’’ is 

the technical definition that is used by 

NRCS under the Farmland Protection 

Policy Act and is included given the 

purposes for acquiring an agricultural 

land easement. 

The definition of ‘‘Private land’’ is 

included since land is only eligible for 

enrollment if it is private or Tribal land. 

Tribal land is land identified as 

‘‘acreage owned by an Indian tribe’’ as 

defined above. 

The term ‘‘Right of enforcement’’ is an 

interest in the land enrolled in the 

ACEP–ALE which the United States 

may exercise under specific 

circumstances to enforce the terms of 

the agricultural land easement. The 

definition is included to identify that 

the right of enforcement may only be 

used under circumstances where the 

eligible entity or other holder of the 

easement has not enforced the terms of 

an agricultural land easement. 

The definition of ‘‘Socially 

disadvantaged farmer or rancher’’ is 

included as an embedded term in the 

definition of ‘‘Historically underserved 

landowner.’’ 

The definition of ‘‘State 

Conservationist’’ is inclusive of 

Directors of the ‘‘Caribbean and Pacific 

Island Areas.’’ 

The definition of ‘‘State Technical 

Committee’’ existed in both FRPP and 

WRP, and the FRPP definition, since it 

cites to both statutory and regulatory 

authority for the State Technical 

Committees, is adopted for use in ACEP. 

The term ‘‘Unique farmland’’ is added 

to improve clarity and provide a more 

technically accurate definition of this 

type of land that is encompassed by the 

clause ‘‘prime and unique farmland.’’ 

The definition of ‘‘Wetland Reserve 

Easement’’ is included to identify the 

type of reserve interest conservation 

easement that NRCS will purchase 

directly from a landowner of eligible 

land pursuant to the policies and 

procedures under subpart C. 

The definition of ‘‘Wetland Reserve 

Plan of Operations’’ is included to 

identify the easement plan that is 

applicable to lands enrolled under 

subpart C. 

The definition of ‘‘Wetland 

restoration’’ existed in WRP and is 

included to identify the actions 


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necessary to further the purposes of 

ACEP–WRE. 

§ 1468.4 Appeals 

This section identifies the different 

programmatic relationships that NRCS 

has with persons, legal entities, or 

eligible entities that receive payment 

under ACEP in return for participation 

in the program and the nature of the 

appeal rights that flow from these 

relationships. Additionally, NRCS 

clarifies the scope of program 

participation so that it is clear that prior 

to the transfer of property rights and the 

payment of compensation, NRCS 

decisions that affect the participant 

adversely are appealable under NRCS 

appeal procedures, including a direct 

appeal to the National Appeals Division 

(NAD) as provided in 7 CFR part 11. 

NRCS determinations that are after 

easement closing would not be subject 

to the appeal process in 7 CFR part 11. 

In the latter situation, a WRE 

landowner, or ALE eligible entity as 

applicable, with easement lands that are 

not in compliance with the easement 

terms would be provided advance 

notice of the NRCS determination and 

the landowner or eligible entity would 

be provided the opportunity to file an 

appeal with the appropriate State 

Conservationist. 

NRCS enters into agreements with 

and makes payments to eligible entities 

under ACEP–ALE, and thus, the eligible 

entities are the program participants 

under subpart B. NRCS enters into 

agreements with and makes payment 

directly to landowners of eligible land 

under ACEP–WRE, and thus, the private 

landowners are the program participants 

under subpart C. Given the different 

program agreement relationships, the 

appeal rights differ. 

§ 1468.5 Scheme or Device 

This section is similar to other 

conservation program provisions and is 

included to describe the authority 

which NRCS exercises to protect the 

Federal investment in conservation 

easements from fraudulent activities. 

§ 1468.6 Subordination, Exchange, 

Modification, and Termination 

This section implements the new 

easement administration provisions 

authorized by section 1265D(c) of the 

1985 Act as added by the 2014 Act. This 

section provides the necessary 

flexibility to ensure that the long-term 

viability of agricultural land and 

wetland protection efforts through 

conservation easements will be 

achieved in a manner that can 

accommodate subsequent compelling 

public needs, or will facilitate the 

practical administration of the program 

when no reasonable alternatives are 

available. This section clarifies the 

preferred alternative is always 

avoidance of impacts to the easement 

area, followed by minimization of 

impacts to the easement area. 

Furthermore, NRCS will give preference 

to addressing impacts of an action to the 

easement onsite or immediately 

adjacent to original easement area over 

addressing such impacts offsite. This 

consideration of alternative and 

sequencing is consistent with NRCS 

responsibilities under the National 

Environmental Policy Act (NEPA). 

Given its stewardship responsibilities, 

NRCS has limited the scope of the 

easement that may be affected by an 

easement action to 10 percent of the 

easement area. Under very limited 

circumstances, NRCS may consider 

easement actions that exceed this 10 

percent limitation if NRCS determines 

that the original easement area has 

experienced offsite landscape changes 

such as catastrophic changes to 

hydrology, complete loss of all 

agricultural infrastructure and markets, 

or contamination from hazardous 

materials from adjacent properties, and 

NRCS determines that such changes 

make achieving easement purposes 

impracticable. 

NRCS will make the determination of 

equal or greater economic value to the 

United States based upon an approved 

easement valuation methodology in 

place at the time of the easement action 

request. Currently, the easement 

valuation methodology for ALE 

easements is outlined under subpart B 

and outlined for WRE easements under 

subpart C. In addition to the value of the 

easement itself, NRCS may consider 

other financial investments it has made 

in the acquisition, restoration, and 

management of the original easement to 

ensure that the easement administration 

action results in equal or greater 

economic value to the United States. 

To further ensure that the easement 

action will result in equal or greater 

conservation value to the United States, 

NRCS places a limitation concerning the 

geographic area from which exchange 

acres can be obtained. The type of 

conservation and economic values of 

exchange properties are more likely to 

be similar if situated in close proximity 

to the original easement area, and thus 

NRCS identifies that replacement of 

easement acres as part of an easement 

exchange must occur in the same 8-digit 

watershed and within the same State. 

§ 1468.7 Transfer of Land 

This section sets forth how NRCS will 

address enrollment of land where the 

landowner transfers the rights in land to 

a third party prior to the purchase of the 

easement. 

§ 1468.8 Payments Not Subject to 

Claims 

This section sets forth that NRCS will 

make payment to its program 

participants without regard to any 

claims that non-Federal creditors may 

have on the financial assets of the 

program participant as authorized by 7 

CFR part 1403. 

§ 1468.9 Assignments 

This section identifies that a program 

participant has the ability to assign their 

right to payment to another person or 

legal entity in accordance with 7 CFR 

part 1404. 

§ 1468.10 Environmental Markets 

This section provides that a 

landowner subject to an ACEP easement 

may also enter into an environmental 

credit agreement with third parties 

provided that the terms of the 

environment credit agreement do not 

interfere with the rights acquired by the 

United States and do not cause the 

landowner to violate the terms of the 

agricultural land easement or wetland 

reserve easement. 

Subpart B—Agricultural Land 

Easements 

§ 1468.20 Program Requirements 

This section includes the program 

requirements for eligible entities who 

wish to receive cost-share assistance 

from NRCS for the purchase of an 

agricultural land easement. 

Paragraph (a) identifies that NRCS 

will facilitate and provide funding for 

the purchase of easements or other 

interests in eligible land that is subject 

to a written pending offer from an 

eligible entity for the purpose of 

protecting the agricultural use and 

related conservation values of the land 

by limiting nonagricultural uses of the 

land. Paragraph (a) also identifies the 

basic parameters of the program, 

including that eligible entities must 

submit applications to NRCS State 

offices, that funding would be provided 

through a cooperative agreement that 

specifies NRCS minimum deed terms, 

and that all easements or other interests 

in land will be in perpetuity unless 

provided otherwise by State law. 

Paragraph (b) provides that to be 

eligible to receive ACEP–ALE funding, 

an Indian Tribe, State, unit of local 

government, or nongovernmental 

organization must demonstrate a 

commitment to long-term conservation 

of agricultural lands; a capability to 

acquire, manage, and enforce easements; 


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sufficient number of staff dedicated to 

monitoring and easement stewardship; 

and the availability of funds. 

Paragraph (c) provides that a 

landowner who is selling an eligible 

entity an agricultural land easement is 

responsible for meeting conservation 

compliance requirements at 7 CFR part 

12, as required by section 1265D(e) of 

the 1985 Act and the Adjusted Gross 

Income Limitation provisions at 7 CFR 

part 1400. Under paragraphs (b) and (c), 

the regulation clarifies that it is the 

eligible entity and landowner’s 

responsibility to ensure that the 

necessary records have been established 

in the USDA customer records system. 

Paragraph (d) sets forth the criteria by 

which land can be determined eligible. 

In particular, eligible land includes 

private or Tribal agricultural land on a 

farm or ranch subject to a pending 

written offer by the eligible entity and 

contains at least 50 percent prime or 

unique farmland or designated farm and 

ranch land of State or local importance, 

unless a lesser percentage is determined 

appropriate by NRCS based on local 

conditions; contains historical or 

archaeological resources; protects 

grazing uses and related conservation 

values by restoring and conserving land; 

or furthers a State or local government 

policy consistent with the purposes of 

the program. 

Paragraph (d) specifies that the land 

must be cropland, rangeland, grassland, 

or land that contains forbs or shrubland 

for which grazing is the predominant 

use, located in an area historically 

dominated by grassland, forbs, or 

shrubs, and could provide habitat for 

animal or plant populations of 

significant ecological value, 

pastureland, or nonindustrial private 

forest land that meet specific criteria. 

Consistent with the prior FRPP 

regulation and policy that sought to 

minimize overlap and conflict with 

other forest easement programs, 

paragraph (d) clarifies that land cannot 

include forest land greater than twothirds of the easement area. NRCS will 

reduce its cost-share in proportion to 

the extent that an easement protects 

forest land that exceeds two-thirds of 

the easement area. For example, if a 100 

acre easement contains 30 acres of 

cropland and 70 acres of forest land, 

NRCS would provide cost-share on the 

30 acres of cropland and 66.6 acres of 

forest land, but would not provide any 

cost-share for the purchase of the 

remaining 3.4 acres of forest land. 

However, this paragraph also identifies 

that NRCS may waive the forest land 

restriction for sugar bush acreage that 

contributes significantly to the 

economic viability of the parcel being 

offered for enrollment. A sugar bush 

refers to a forest stand which is utilized 

by agricultural landowners for the 

production of maple syrup. The tree 

canopy is dominated by sugar maple, 

black maple, or similar tree species, and 

other tree species, if present, form only 

a small fraction of the total tree cover. 

NRCS believes that landowners manage 

their sugar bush as an integral part of 

their overall agricultural operations. 

Paragraph (e) specifies lands that are 

ineligible for enrollment. Lands that are 

owned by a governmental entity, unless 

in trust for an Indian Tribe, are 

ineligible. Additionally, certain land 

owned by nongovernmental 

organizations whose purpose is to 

protect agricultural use and related 

conservation values are ineligible since 

such lands are already protected from 

conversion to agricultural use. NRCS 

will also consider land ineligible if it is 

subject to (1) onsite or offsite conditions 

that would interfere with the 

agricultural viability of the property, 

including the risk of the presence of 

hazardous substances or incompatible 

land uses, or (2) subject to a deed 

restriction that provides similar 

protection to that provided by the 

program. 

§ 1468.21 Application Procedures 

This section identifies the application 

procedures that an entity must follow in 

order to have their application be 

considered for funding under ACEP– 

ALE. 

Paragraph (a) requires an entity to 

submit an application to NRCS in the 

State where parcels are located. 

Paragraph (b) identifies that 

applications may be submitted on a 

continuous basis or in response to 

specific program solicitations. However, 

NRCS may announce application cut-off 

periods to evaluate applications 

received by a date certain. 

Paragraph (c) provides that NRCS will 

determine whether an applicant is 

eligible to participate in ACEP–ALE 

based on the criteria set forth in 

§ 1468.20(b). 

Paragraph (d) provides that at the end 

of each fiscal year, NRCS will cancel the 

lists of pending, unfunded eligible 

parcels unless the eligible entity 

requests that certain parcels be 

considered for funding in the following 

fiscal year. 

§ 1468.22 Establishing Priorities, 

Ranking Considerations, and 

Application Selection 

This section sets forth how parcels 

will be ranked for funding. NRCS will 

determine the eligibility of the 

landowner and land prior to ranking. 

The NRCS ranking system in each State 

incorporates national and State-specific 

criteria to rank, score and prioritize each 

eligible parcel within the State. All 

eligible parcels that compete for funding 

during a given application period are 

ranked using the same NRCS ranking 

criteria. The national criteria must 

comprise at least 50 percent of the total 

numerical ranking score with the state 

criteria comprising the remaining 50 

percent. 

The national ranking criteria include 

quantitative factors such as the percent 

of prime, unique, and important soil or 

grazing uses and related conservation 

values in the parcel to be protected; the 

percent of cropland, pastureland, 

grassland, and rangeland in the parcel to 

be protected; the ratio of the total acres 

of land in the parcel to be protected to 

average farm or ranch size in the county 

according to the most recent USDA 

Census of Agriculture; the percent 

population growth in the county as 

documented by the United States 

Census; the threat of conversion to 

incompatible land uses; the existence of 

a farm or ranch succession plan; 

proximity to other protected land; 

grassland that is currently enrolled in 

the conservation reserve program in a 

contract that is set to expire within 1 

year that would benefit from protection 

under a long-term easement; and other 

similar criteria. 

This section also identifies the factors 

that may be identified by NRCS at the 

State level. State criteria are determined 

by the State Conservationist, with 

advice from the State Technical 

Committee. This section of the 

regulation identifies that the State 

criteria may consider the location of a 

parcel in an area zoned for agricultural 

use, the eligible entity’s performance in 

managing and enforcing easements, 

multifunctional benefits of agricultural 

land protection, geographic regions 

where enrollment of particular lands 

may help achieve program objectives, 

diversity of natural resources to be 

protected, score using the land 

evaluation and site assessment system 

or equivalent measure for grassland 

enrollments, or other criteria 

determined by NRCS that will allow for 

the selection of parcels that will achieve 

ACEP–ALE purposes. When developing 

the State ranking factors, the State 

Conservationist must use factors that 

will assess the parcels potential to meet 

the purpose and goals of ACEP–ALE. 

The ranking system incorporating 

both national and state criteria enables 

NRCS to prioritize parcels that merit 

ACEP–ALE enrollment. The ranking 

process must be followed and parcels 

funded in order of priority unless 


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inadequate funds are available to fund 

the next highest ranked parcel. If 

adequate funds are not available, NRCS 

may select the next highest-ranked 

parcel for which funding is available. 

The ranking system may assign 

negative points or place at the bottom of 

the ranking list any parcels submitted 

by an eligible entity which is delinquent 

on submitting annual monitoring 

reports on prior-year conservation 

easements or has open ACEP–ALE 

cooperative agreements more than 2 

years old. State Conservationists may 

also establish ranking thresholds below 

which parcels will not be funded. 

In summary, NRCS will rank all 

eligible parcels submitted by eligible 

entities prior to an announced 

application cut-off date. NRCS will rank 

all parcels in accordance with the 

national and State criteria identified in 

this section. As required by section 

1265B(b)(3)(C) of the 1985 Act, NRCS 

will not assign a higher priority to any 

parcel solely based on the lesser cost to 

the program. 

NRCS will list the selected eligible 

parcels in the cooperative agreement to 

be entered into between NRCS and the 

eligible entity. 

§ 1468.23 Cooperative Agreements 

This section addresses the principal 

program document under which NRCS 

and an eligible entity identify how they 

will coordinate the activities needed for 

the eligible entity to purchase a 

conservation easement with ACEP 

assistance, including their respective 

rights and responsibilities related to 

program enrollment under this subpart. 

In particular, NRCS, on behalf of the 

CCC, enters into a cooperative 

agreement with entities selected for 

funding. Once NRCS selects an 

application, the eligible entity works 

with NRCS to finalize and sign a 

standard program cooperative 

agreement, incorporating all necessary 

ACEP–ALE requirements including the 

requirement that each easement must 

have an agricultural land easement plan. 

§ 1468.24 Compensation and Funding 

for Agricultural Land Easements 

This section addresses the extent to 

which NRCS will provide financial 

assistance to an eligible entity for the 

purchase of an agricultural land 

easement by the eligible entity. NRCS 

may provide up to 50 percent of the 

approved fair market value of the 

agricultural land easement. NRCS will 

approve the use of the Uniform 

Standards for Professional Appraisal 

Practice (USPAP), the Uniform 

Appraisal Standards for Federal Land 

Acquisition (UASFLA), or Areawide 

Market Analysis procedures by the 

eligible entity for determining ‘‘fair 

market value of the agricultural land 

easement.’’ An eligible entity is 

responsible to obtain a fair market value 

determination of the easement using one 

of the approved methods in accordance 

with NRCS specifications and 

applicable industry standards. The 

eligible entities provide the easement 

valuation determination documentation 

to NRCS. The Uniform Standards of 

Professional Appraisal Practices may 

serve as an industry standard for 

areawide market analysis. NRCS 

welcomes comments on what other 

types of ‘‘industry methods’’ should be 

considered when determining ‘‘fair 

market value of the agricultural land 

easement’’ for Federal match 

requirements for agricultural land 

easements. 

A landowner may make donations 

toward the acquisition of the 

agricultural land easement. However, 

the 2014 Act requires that the eligible 

entity provide a share that is at least 

equivalent to that provided by NRCS. 

While the eligible entity may include as 

part of its share a landowner’s qualified 

donation, the statute identifies that the 

eligible entity must contribute its own 

cash resources in an amount that is at 

least 50 percent of the amount 

contributed by NRCS. To ensure that the 

Federal share meets these parameters, 

NRCS requires that prior to execution of 

the easement deed and payment of 

compensation to the landowner, the 

eligible entity provide the necessary 

acceptable valuation documentation and 

NRCS approve the determination of fair 

market value. 

This section also outlines 

circumstances where NRCS may waive 

certain cost-share limitations for 

grassland of special environmental 

significance or other projects of special 

significance. For grasslands of special 

environmental significance, NRCS may 

provide up to 75 percent of the fair 

market value of the agricultural land 

easement and the eligible entity is 

required to provide the remainder as the 

entity share, of which the eligible entity 

is still required to provide its own cash 

resources as at least half of the entity 

share unless an additional entity cash 

contribution waiver is requested and 

granted. 

For projects of special significance, 

NRCS may waive the eligible entity cash 

contribution requirement in accordance 

with the criteria and circumstances 

outlined in this section. However, for 

these projects of special significance, 

the landowner donation must increase 

commensurate to the amount of the 

waiver, the landowner donation must be 

voluntary, and the property must be in 

active agricultural production. This 

section identifies the criteria by which 

a project may be determined to be one 

of special significance, including that 

the land is subject to threat of 

conversion or fragmentation and is in 

proximity to other protected areas 

supporting agricultural, grassland, or 

other compatible uses. 

Additional factors considered are 

whether the project is listed on the 

National Register of Historic Places, if 

the location is within a micropolitan 

statistical area and 50 percent of the 

adjacent land is agricultural land, if the 

location is within a metropolitan 

statistical area, if the project will 

increase participation in agriculture by 

underserved communities, veterans, or 

beginning or disabled farmers and 

ranchers, and whether the farm or ranch 

is used as an education or 

demonstration farm focused on 

agricultural production and natural 

resource conservation, and other similar 

factors. NRCS welcomes input on the 

criteria that have been developed and 

any additional criteria that may be used 

to determine projects of special 

significance. 

NRCS will provide ACEP–ALE costshare funds toward the cost of the 

agricultural land easement itself. Since 

section 1265B of the 1985 Act does not 

authorize any cost-share beyond 

contribution towards the purchase of an 

ACEP–ALE easement based on the 

approved fair market value of the 

agricultural land easement, NRCS does 

not provide funds for related 

administrative costs such as appraisals, 

surveys, title insurance, legal fees, costs 

of easement monitoring, and other 

related administrative and transaction 

costs incurred by the eligible entity. 

§ 1468.25 Agricultural Land Easement 

Deeds 

Section 1265B(b)(4)(C) of the 1985 Act 

anticipates that an eligible entity is able 

to use its own deed terms provided that 

NRCS is able to determine that such 

terms ‘‘are consistent with the purposes 

of the program [and] permit effective 

enforcement of the conservation 

purposes of such easements.’’ Therefore, 

in order for NRCS to provide cost-share 

assistance to an eligible entity, NRCS 

must ensure that the eligible entity will 

include in its agricultural land easement 

deeds the terms and conditions 

necessary to ensure ACEP statutory 

purposes and requirements are met. 

NRCS may determine that an 

agricultural land easement deed meets 

program purposes by either the eligible 

entity drafting all of the deed terms and 

conditions for an individual easement 


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and submitting the entire deed to NRCS 

for review, or through NRCS developing 

a standard set of minimum deed terms 

that the eligible entity agrees to 

incorporate as a whole into the deed 

along with the entity’s own deed terms. 

In either scenario the eligible entity may 

use their own terms and conditions, the 

difference is the review process by 

which NRCS ensures the purposes and 

requirements of the program are met. 

Under FRPP, NRCS reviewed each 

individual deed review due to the 

variability of easement deed terms. The 

result of this highly individualized 

approach provided maximum flexibility 

for the eligible entity but also resulted 

in extended acquisition timelines, 

inconsistent deed terms, variability in 

deed enforceability, and risk of 

inequitable treatment of eligible entity 

applicants. 

Under ACEP, NRCS will provide a 

standard set of minimum deed terms 

that could be wholly incorporated along 

with the eligible entity’s own deed 

terms into the agricultural land 

easement deed. NRCS and the eligible 

entity would agree to the standard 

minimum deed terms through the 

cooperative agreement, and the eligible 

entity would include these standard 

minimum deed terms into the 

agricultural land easement deed directly 

or as deed addendum attached and 

incorporated by reference into the deed. 

If the eligible entity agrees to and 

incorporates these minimum standard 

deed terms, NRCS may choose not to 

review individual deeds prior to 

closing. NRCS goals with this approach 

are to streamline program delivery, 

increase the transparency of program 

requirements, ensure the equitable 

treatment of all participants, and reduce 

inconsistency in the long-term 

management and enforcement of the 

easements. This approach still allows 

the eligible entity to introduce its own 

deed terms, including those that are 

more restrictive. Through the 

publication of this interim rule, NRCS is 

seeking and welcomes specific public 

comment on the content of these 

standard minimum deed terms. The 

current minimum deed terms can be 

found at [enter URL for such terms]. 

Due to high program demand, limited 

funds, and anticipated cost-savings from 

streamlining program delivery, in fiscal 

year 2015, NRCS will prioritize those 

applications with entities who agree to 

use the standard minimum deed terms 

found at http://www.nrcs.usda.gov/wps/ 

portal/nrcs/main/national/programs/

easements/acep/. 

Among the minimum requirements 

that must be in each ALE funded 

easement, whether or not an eligibility 

entity elects to use the minimum 

standard set of deed terms, is a right of 

enforcement for the Secretary of 

Agriculture required by Section 

1265B(b)(4)(C)(iii) of the 1985 Act. The 

United States right of enforcement may 

only be used if the terms of the 

Agricultural Land Easement are not 

enforced by the holder of the easement. 

The right of enforcement includes the 

right of inspection so that NRCS can 

ensure that the eligible entity is meeting 

its enforcement, monitoring and 

stewardship responsibilities. As 

described above, the eligible entity must 

annually monitor compliance and 

provide NRCS an annual monitoring 

report that documents that the eligible 

entity and landowner have complied 

with the Agricultural Land Easement 

and Agricultural Land Easement Plan. 

Therefore, pursuant to its right of 

enforcement, if the annual monitoring 

report is insufficient or is not provided 

annually, or if NRCS has evidence of an 

unaddressed violation, as determined by 

NRCS, NRCS may exercise this right of 

inspection and enter the easement area 

with advance notice to the eligible 

entity and the landowner or 

landowner’s representative. In the event 

of an emergency, NRCS may enter the 

easement area to prevent, terminate, or 

mitigate a potential or unaddressed 

violation of the easement’s restrictions 

and will provide notice to both the 

eligible entity and the landowner at the 

earliest practicable time. 

Consistent with former FRPP 

requirements and standard conservation 

easement practice, each ALE funded 

easement must also include an 

indemnification clause requiring the 

landowner to indemnify and hold 

harmless the United States from liability 

arising from or related to the property 

enrolled in ACEP–ALE. Each eligible 

entity is also responsible for the 

development of baseline documentation 

that is attached to the easement deed, or 

if allowed by State law cross reference 

in the deed. Baseline documentation is 

submitted to NRCS with the other 

easement deed documents. 

Consistent with policy that had been 

developed under FRPP, NRCS has 

established that impervious surfaces 

will not exceed 2 percent of the ACEP– 

ALE easement area, excluding NRCSapproved conservation practices. 

However, NRCS may waive the 2 

percent impervious surface limitation 

on a parcel-by-parcel basis, provided 

that no more than 10 percent of the 

easement area is covered by impervious 

surface. 

The inclusion of these minimum 

provisions in ALE-funded easements is 

a requirement for participation in the 

ACEP–ALE and cannot be waived. All 

agricultural land easement deeds 

acquired with ACEP–ALE funds must be 

recorded in the appropriate land records 

for the county or parish. 

§ 1468.26 Agricultural Land Easement 

Plans 

This section sets forth the 

requirement of section 

1265B(b)(4)(C)(iv) of the 1985 Act that 

all agricultural land easements must be 

subject to an agricultural land easement 

plan approved by NRCS and the 

landowner. This section identifies the 

minimum requirements for an 

agricultural land easement plan and 

describes the relationship between the 

agricultural land easement plan and the 

individual component plans that are 

required for certain land-use types and 

incorporated by reference into the 

overarching agricultural land easement 

plan. The eligible entity is responsible 

to ensure an agricultural land easement 

plan that has been approved by NRCS 

and signed by the landowner is in place 

prior to the execution of the easement 

deed and the payment of compensation 

to the landowner. 

As identified in Section 1265B(d), 

NRCS may provide technical assistance, 

if requested, to assist in the 

development of an agricultural land 

easement plan. Therefore, the 

cooperative agreement can address the 

availability of NRCS technical 

assistance to develop these plans. No 

separate approval of the plan by NRCS 

is needed if NRCS, a certified technical 

service provider, or other NRCS 

certified conservation planner develops 

the agricultural land easement plan. The 

development of a robust and 

comprehensive agricultural land 

easement plan, such as a plan at the 

NRCS Resource Management System 

planning level, is encouraged and as 

such, may include both required and 

recommended practices. NRCS 

recommends that NRCS’ planning 

procedures, conservation practices, and 

standards and specifications be used to 

develop the agricultural land easement 

plans. Certain component plans, such as 

the forest land management plan may 

use other industry-approved planning 

methods and standards such as forest 

stewardship plans. 

The eligible entity is responsible for 

enforcement of the easement, including 

ensuring the landowner is 

implementing or adhering to the 

required elements of the agricultural 

land easement plan. The NRCS right of 

enforcement includes a right of 

inspection that authorizes NRCS to 

ensure the landowner and easement 

holder are in compliance with the 


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agricultural land easement plan as 

required by section 1265B(b)(4)(C)(iv). 

§ 1468.27 Eligible Entity Certification 

Section 1265B of the Food Security 

Act of 1985, as amended, requires NRCS 

to establish a process under which 

eligible entities that meet established 

criteria may be certified and enter into 

long-term agreements for ACEP–ALE 

cost-share assistance. In summary, 

Section 1468.27 implements this 

statutory provisions and provides that, 

at an entity’s request, the Chief will 

determine whether an eligible entity 

meets certifications requirements and if 

so, certify the entity. 

The ACEP–ALE statutory provisions 

specify that an eligible entity, to be 

certified, must demonstrate to NRCS 

that the eligible entity will maintain, at 

a minimum, for the duration of the 

agreement: 

(i) A plan for administering easements 

that is consistent with the purposes of 

ACEP–ALE; 

(ii) The capacity and resources to 

monitor and enforce the agricultural 

land easements; and 

(iii) Policies and procedures to 

ensure— 

a. the long-term integrity of the 

easements, 

b. timely completion of acquisition of 

such easements, and 

c. timely and complete evaluation and 

reporting to NRCS on the use of ACEP– 

ALE cost-share assistance provided. 

Additionally, NRCS must, based upon 

when an entity is certified, conduct a 

review of a certified eligible entity at 

least every three years to ensure it 

continues to meet the certification 

criteria. If NRCS finds that the certified 

entity no longer meets the criteria, 

NRCS may allow the entity a specified 

period of time to take corrective actions, 

and may revoke certification if the 

entity does not meet the requirements. 

These same certification provisions 

existed under the ACEP–ALE 

predecessor program, the Farm and 

Ranch Lands Protection Program 

(FRPP). However NRCS is introducing a 

few key changes in the ACEP–ALE 

regulation and policy to streamline and 

improve the certification process that 

was initially developed under FRPP and 

expand the availability of certification 

to eligible entities. 

NRCS has developed a set of 

objective, measurable criteria that can 

be used to evaluate the eligible entity’s 

ability to meet the statutory certification 

criteria. The certification criteria 

outlined in this interim rule are similar 

to the criteria under FRPP with a key 

change to the criteria that proved most 

problematic under FRPP. The statutory 

requirement that the entity have a plan 

to administer easements that is 

consistent with the purposes of ACEP– 

ALE will be demonstrated by the 

eligible entity agreeing in their request 

for certification to use the template 

ACEP–ALE Agreement for Certified 

Entities if they are certified. 

This change is in effort to address the 

issues that arose related to entities being 

unable or unwilling to adjust their 

policy and procedures to meet the 

programmatic FRPP requirements under 

the FRPP certification process. This 

change will also expedite the review of 

entity certification requests and ensure 

the equitable treatment of all certified 

entities by establishing a simple, 

transparent, objective criteria for 

determining whether the entity is 

addressing the statutory requirement. 

Another change is that an eligible 

entity may submit a request for 

certification with associated 

documentation to the NRCS State 

Conservationist at any time rather than 

during specific sign-up periods. The 

State Conservationist will review the 

materials and make a recommendation 

to the National Office for final 

determination. NRCS will notify an 

entity in writing whether they have 

been certified and the rationale for the 

agency’s decision. 

This section also identifies the type of 

administrative flexibility available to a 

certified entity based upon their 

certification. For example, NRCS will 

rely on the certified entity to 

independently complete the easement 

acquisition in accordance with the 

terms and conditions of the cooperative 

agreement and consistent with the 

requirements of this part. NRCS will 

conduct annual quality assurance 

reviews on a subset of the transactions 

after closing and payment rather than 

prior to closing. Since NRCS review of 

these transactions is minimized prior to 

closing, a certified entity is better able 

to schedule easement closings and meet 

timelines associated with other funding 

sources. These benefits associated with 

certification will allow a certified entity 

greater autonomy in its acquisition of 

ALE-funded easements and potentially 

expedite the time it takes for a certified 

entity to complete its easement 

acquisitions. 

§ 1468.28 Violations and Remedies 

This section sets forth the eligible 

entity’s responsibilities to enforce the 

easement terms and conditions. 

Additionally, this section sets forth the 

circumstances under which NRCS may 

exercise its right of enforcement. 

NRCS will work with the eligible 

entity to assist it in its responsibility to 

enforce the easement terms. If, however, 

the eligible entity is unable or unwilling 

to enforce the easement terms and NRCS 

determines the eligible entity has not 

met its enforcement responsibilities, 

NRCS may exercise the United States’ 

rights identified under an agricultural 

land easement or other interest in land 

to protect the agricultural values. If such 

action becomes necessary, NRCS will 

provide written notice by certified mail, 

return receipt requested, to the eligible 

entity at the eligible entity’s last known 

address. Unless emergency 

circumstances require more immediate 

NRCS action to prevent imminent harm, 

the notice will provide the eligible 

entity an opportunity to cure its failure 

to enforce the terms of the deed within 

a reasonable timeframe. If NRCS is 

required to exercise its right of 

enforcement, NRCS may recover any 

and all administrative and legal costs 

from the eligible entity, the current 

holder of the easement if applicable, 

and the landowner or other party 

responsible for the easement violation. 

Subpart C—Wetland Reserve 

Easements 

§ 1468.30 Program Requirements 

This section sets forth the basic 

requirements for participation in ACEP 

through a wetland reserve easement, 

including landowner and land 

eligibility requirements. 

Paragraph (a) identifies that under the 

ACEP–WRE, NRCS may purchase 

wetland reserve easements from eligible 

landowners who voluntarily agree to the 

restoration, protection, and 

enhancement of wetlands on eligible 

private and Tribal lands. Additionally, 

the 30-year contract enrollment option 

is available to enroll acreage owned by 

Indian Tribes and these 30-year 

contracts are implemented similarly to 

30-year easements. In order to 

participate through any of the WRE 

enrollment options, the landowner must 

agree to the implementation of a WRPO, 

the effect of which is to restore, protect, 

enhance, maintain, and manage the 

hydrologic conditions of inundation or 

saturation of the soil, native vegetation, 

and natural topography of eligible lands. 

Paragraph (b) sets forth the county 

cropland enrollment limitations that are 

established by section 1244 of the 1985 

Act as amended by the 2014 Act. In 

particular, no more than 25 percent of 

the total cropland in any county may be 

enrolled in CRP and ACEP–WRE, and 

no more than 10 percent of the total 

cropland in the county, as determined 

by FSA, may be subject to an easement 

under ACEP–WRE. The cropland limits 

do not apply to shelterbelts, 


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windbreaks, and certain designated wet 

and saturated soils. 

Paragraph (c) identifies that an 

applicant must be the landowner of 

eligible land for which enrollment is 

sought, and must have owned that land 

for at least 24 months prior to the time 

the land is determined eligible for 

enrollment unless certain exemptions 

apply, including that it is determined by 

the Chief, upon application by the 

landowner, that such land was acquired 

under circumstances that give adequate 

assurances that the land was not 

acquired for the purposes of placing it 

in the program. NRCS has also included 

the requirement that the landowner 

must provide all necessary documents 

that are required by the Farm Service 

Agency to establish customer records in 

the USDA customer records system. 

Recipients of USDA benefits, including 

NRCS customers, work with the Farm 

Service Agency to establish the requisite 

eligibility records in the USDA 

customer service data base. NRCS 

checks these records to ensure that the 

landowner meets conservation 

compliance and adjusted gross income 

limitation requirements. 

Paragraph (d) sets forth how NRCS 

will handle enrollment situations 

where, prior to easement purchase, the 

landowner transfers the land offered for 

enrollment. 

Paragraph (e) sets forth the land 

eligibility criteria that were specified by 

sections 1265(3) of the 1985 Act as 

added by the 2014 Act. Among the 

categories of eligible land are: Farmed 

wetland or converted wetland, together 

with adjacent lands that are functionally 

dependent on the wetlands; cropland or 

grassland that was used for agricultural 

production prior to flooding from the 

natural overflow of a closed basin lake 

or pothole, together with the adjacent 

land, where practicable, that is 

functionally dependent on the cropland 

or grassland; farmed wetland and 

adjoining lands enrolled in CRP, with 

the highest wetland functions and 

values, and is likely to return to 

production after it leaves CRP; or a 

riparian area along a stream or other 

waterway that links or, after restoring 

the riparian area, will link wetlands 

protected by the ACEP–WRE easement, 

another easement, or other device or 

circumstance that achieves the same 

objectives as an easement. 

Determination of land eligibility is made 

at the time of application evaluation. 

NRCS may also enroll adjacent or 

contiguous land if such land maximizes 

wildlife benefits and contributes 

significantly to wetland functions and 

values. Such adjacent or contiguous 

land may include buffer areas, created 

wetlands, noncropped natural wetlands, 

riparian areas that do not otherwise 

meet riparian eligibility requirements, 

and restored wetlands. 

Land enrolled in the program must 

have sufficient legal access, be 

configured in a size and with 

boundaries that allow for the efficient 

management of the area for program 

purposes, and otherwise promote and 

enhance program objectives, as 

determined by NRCS. 

Paragraph (f) addresses the enrollment 

of CRP lands. 

Paragraph (g) identifies land that is 

not eligible for enrollment, including 

converted wetlands if the conversion 

was commenced after December 23, 

1985; land established to trees under 

CRP except in cases where NRCS 

determines it would further the 

purposes of the program; lands owned 

by a Federal or non-Federal 

governmental agency; land that does not 

have sufficient legal access, clear title, 

or meet Department of Justice Title 

Standards; land subject to an easement 

or deed restriction which, as determined 

by NRCS, provides similar restoration 

and protection of wetland functions and 

values as would be provided by 

enrollment in ACEP–WRE; and lands 

where purposes of program or 

implementation of restoration practices 

would be undermined due to onsite or 

offsite conditions. Such conditions may 

include risk of contamination from 

hazardous substances either onsite or 

offsite, proposed or existing rights of 

way, either onsite or offsite, for 

infrastructure development, or adjacent 

land uses that would either impede 

complete restoration or prevent wetland 

functions and values from being fully 

restored. 

With respect to the ineligibility of 

land established to trees under CRP, the 

2014 Act authorized a waiver where 

NRCS determines the enrollment of 

such land will further the purposes of 

the program. Such circumstances may 

exist where established cover conforms 

to ACEP–WRE requirements if the CRP 

trees are on incidental land adjacent to 

eligible wetland; enrollment would 

improve the practical administration of 

the easement boundary; the land 

contains habitat for at-risk species or 

migratory birds; conversion to higher 

intensity of production is likely; or 

other criteria as determined appropriate 

by the Chief. 

§ 1468.31 Application Procedures 

This section sets forth the application 

procedures for a landowner that wants 

to participate in the ACEP–WRE. 

Specifically, a landowner may obtain 

and submit to NRCS an application to 

participate in the program at any time 

to the local USDA Service Center. By 

filing an application, the landowner 

consents to an NRCS representative 

entering upon the land for purposes 

needed to evaluate the application. The 

landowner is entitled to accompany an 

NRCS representative on any site visits. 

§ 1468.32 Establishing Priorities, 

Ranking Consideration and Project 

Selection 

This section sets forth the factors 

NRCS will use to select properties for 

enrollment in an ACEP–WRE. Among 

the priority factors, NRCS may consider 

the conservation benefits of obtaining an 

easement, the cost-effectiveness of each 

easement, whether Federal funds are 

being leveraged, and the extent to which 

ACEP–WRE purposes would be 

achieved on the land. 

Given the statutory priority placed on 

acquiring easements based on the value 

of the easement for protecting and 

enhancing habitat for migratory birds 

and other wildlife and maximizing the 

benefit of the Federal investment, NRCS 

will also give priority consideration to 

obtaining permanent easements over 

shorter term easements. NRCS may 

work with both the FWS and the State 

Technical Committee on priority factors 

to ensure that ACEP and related Federal 

consultation requirements are met. 

As provided by section 1265D(b) of 

the 1985 Act, NRCS may provide 

priority enrollment to land that is 

currently enrolled in CRP in a contract 

that is set to expire within one year from 

date of application to ACEP–WRE and is 

a wetland or related area with high 

wetland functions and values; is likely 

to return to production after the land 

leaves CRP; and has not been 

established to trees under CRP unless 

that limitation has been waived by 

NRCS. 

This section sets forth how 

applications will be ranked for funding. 

The NRCS ranking system in each State 

incorporates criteria to rank, score and 

prioritize each eligible parcel within the 

State. NRCS determines priority for 

ACEP–WRE enrollment through an 

onsite field reviews conducted by NRCS 

and an appropriate interdisciplinary 

team of partner specialists, which may 

include FWS. The landowner is invited 

to participate in these field reviews. 

The ranking criteria include 

quantitative factors that assess the sites 

physical capacity to be restored and the 

extent and diversity of anticipated 

benefits of such restoration. Hydrology 

restoration potential comprises at least 

50 percent of the potential points 

awarded for environmental benefit 

considerations. NRCS obtains specific 


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information about a site’s physical 

capacity to be restored using metrics 

such as the soil and landscape form 

characteristics including soil type, 

permeability, flooding frequency, depth 

to water table, slope, extent the original 

hydrology has been manipulated or 

removed, the extent to which the 

original hydrology can be restored, and 

other wetland restoration factors. To 

receive hydrology restoration ranking 

points, hydrology restoration or 

enhancement practices must provide 

hydrologic conditions suitable for the 

needs of the native wetland-dependent 

wildlife species that occurred in the 

area and appropriate for the wetland 

functions and values that existed prior 

to manipulation. 

§ 1468.33 Enrollment Process 

This section sets forth the process that 

NRCS will use for handling applications 

once they have been selected for 

enrollment. NRCS notifies a landowner 

of their tentative acceptance into the 

program. This notice does not bind 

NRCS or the landowner, but allows the 

parties to continue the enrollment 

process. 

Once NRCS has completed its 

preliminary enrollment activities, the 

landowner will be presented with an 

agreement to purchase. The agreement 

to purchase describes the easement area, 

the easement compensation amount, the 

easement terms and conditions, and 

other terms and conditions for 

participation that NRCS may require. 

Easement compensation is based upon 

the criteria identified in § 1468.34, 

including the determination of fair 

market value of the land. This same 

methodology was used under the 

predecessor program, the Wetlands 

Reserve Program. USPAP establishes the 

criteria for appraisals and areawide 

market analysis which are each 

supplemented by NRCS Specifications 

and Statement of Work requirements for 

each methodology. NRCS has also 

developed policy parameters for area 

wide market analyses and geographic 

area rate caps to ensure that 

compensation amounts are 

appropriately constrained. Individual 

appraisals cannot be used on land that 

has been valued through an areawide 

market analysis. 

Fair market value is determined, 

therefore, through either the use of a 

USPAP appraisal or an areawide market 

analysis or survey. For any particular 

easement offer, NRCS will only use one 

method for determining fair market 

value, and a landowner does not have 

input into which method NRCS will 

use. Once fair market value is 

determined, the value is compared to 

the geographic area rate cap and the 

landowner offer made prior to 

enrollment, if any. The least of these 

values is the value used to determine 

the easement compensation amount. 

The landowner accepts enrollment in 

the ACEP–WRE by signing the 

agreement to purchase. A similar 

process is followed for enrolling land 

held by Indian Tribes through a 30-year 

contract. 

The agreement to purchase establishes 

the scope of the agreement between the 

parties, including the landowners’ 

agreement to grant to the United States 

a wetland reserve easement and to the 

implementation of a WRPO. 

§ 1468.34 Compensation and Funding 

for Wetland Reserve Easements and 30- 

Year Contracts 

This section sets forth how NRCS will 

determine the level of compensation 

that a landowner will receive in return 

for granting a wetland reserve easement. 

Easement compensation methodologies 

are determine by statute at section 

1265C(b)(6) of the 1985 Act. In 

particular, the landowner will receive 

the least of: (1) The fair market value of 

the land; (2) a geographic rate cap; or (3) 

the landowner offer. This section also 

describes how each of these values are 

determined. This valuation 

determination uses the same methods of 

valuation determination that had 

previously been used in the WRP. 

§ 1468.35 Wetland Reserve 

Enhancement Partnerships (WREP) 

This section sets forth how NRCS will 

implement a wetland reserve 

enhancement option with partners 

under ACEP–WRE. In particular, the 

purpose of WREP is to target and 

leverage resources to address high 

priority wetlands protection, 

restoration, and enhancement objectives 

through agreements with States 

(including political subdivision or 

agency of a State, nongovernmental 

organizations, and Indian tribes. The 

Chief will establish priorities for 

funding, required level of partner 

contribution of resources, ranking 

criteria, and other criteria. NRCS will 

make public notifications of the 

availability of funding and instruct 

interested partners about the manner in 

which they should submit their 

proposal. Partners with a selected 

proposal will enter into WREP 

agreements with NRCS to carry out the 

project. Under WREP, individual 

easements are purchased directly from 

the landowner and held by the United 

States. 

§ 1468.36 WRPO Payments 

This section identifies that NRCS will 

provide funds towards implementing 

the WRPO on land enrolled through a 

wetland reserve easement or 30-year 

contract. NRCS will offer to pay at least 

75 percent but not more than 100 

percent of the cost of implementing the 

WRPO on land subject to a permanent 

easement. NRCS will offer to pay at least 

50 percent but not more than 75 percent 

of such costs on enrolled land subject to 

a 30-year easement or maximum 

duration allowed by state law or 30-year 

contract. 

§ 1468.37 Easement and 30-Year 

Contract Participation Requirements 

This section identifies that to enroll 

land in ACEP–WRE through the 

permanent or 30-year easement option, 

a landowner must grant an easement to 

the United States. Consistent with 

ACEP–WRE requirements and as 

previously required under WRP, the 

landowner grants the wetland reserve 

easement to the United States through a 

reserved interest deed, including the 

right of access to the easement area, the 

right to permit compatible uses of the 

easement area, and the right to restore, 

protect, enhance, maintain, and manage 

activities on the easement area. Similar 

provisions are contained in a 30-year 

contract that is entered into with an 

Indian Tribe. 

This section also identifies that a 

landowner may be able to reserve 

grazing rights under a wetland reserve 

easement or 30-year contract if the 

reservation and use of the grazing rights 

is consistent with the historical natural 

uses of the land and long-term wetland 

protection and enhancement goals for 

which the easement or 30-year contract 

was established. Compensation for 

easements or 30-year contracts where 

the grazing rights are reserved will be 

reduced by an amount equal to the 

value of the reserved grazing rights, as 

determined by the Chief. 

§ 1468.38 The WRPO Development 

This section identifies that the 

development of the WRPO is through 

the local NRCS representative, in 

consultation with the State Technical 

Committee, with consideration of 

available site-specific technical input 

from the FWS and others as appropriate. 

NRCS specifies in the WRPO the 

manner in which land enrolled through 

a wetland reserve easement or 30-year 

contract will be restored, protected, 

enhanced, maintained, and managed to 

accomplish ACEP–WRE goals. NRCS 

will review, revise, and supplement the 

WRPO, as needed, throughout the 


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duration of the easement or 30-year 

contract term to ensure that program 

goals are fully and effectively achieved. 

§ 1468.39 Violations and Remedies 

This section identifies how NRCS will 

address violations of a wetland reserve 

easement or 30-year contract. In the 

event of a violation of a wetland reserve 

easement or 30-year contract involving 

the landowner, NRCS will give the 

landowner reasonable written notice 

and an opportunity to voluntarily 

correct the violation within 30 days of 

the date of the notice. However, NRCS 

reserves the right to enter upon the 

easement area at any time to remedy 

deficiencies or easement violations. 

Such entry may be made at the 

discretion of NRCS when such actions 

are deemed necessary to protect wetland 

functions and values or other rights of 

the United States under the easement. 

The landowner will be liable for any 

costs incurred by the United States as a 

result of the landowner’s negligence or 

failure to comply with easement or 

contractual obligations. 

Executive Summary of the Regulatory 

Impact Analysis 

Section XII of the Food Security Act 

of 1985, as amended by the Agricultural 

Act of 2014 (2014 Act), requires the 

Natural Resources Conservation Service 

(NRCS) to establish the Agricultural 

Conservation Easement Program (ACEP) 

in a new Subtitle H. This Subtitle 

repeals the previously authorized 

programs, Wetlands Reserve Program 

(WRP), Farm and Ranchlands Protection 

Program (FRPP) and Grassland Reserve 

Program (GRP), but maintains the 

purposes of these programs in ACEP. 

Pursuant to Executive Order 12866, 

Regulatory Planning and Review, NRCS 

has conducted a Regulatory Impact 

Analysis and Initial Regulatory 

Flexibility Analysis (RIA) of ACEP using 

historical data and information, 

including information from WRP, FRPP, 

and GRP. This RIA describes both the 

potential impact of the regulation on 

benefits and costs and the regulatory 

flexibility in the rule implementation. 

Implementation of this rule is required 

to complete the Congressional Action. 

In considering alternatives for 

implementing ACEP, the agency 

followed the legislative intent to 

establish an open participatory process, 

optimize environmental/conservation 

benefits, and address natural resource 

concerns. Because ACEP is a voluntary 

program, the program will not impose 

any obligation or burden upon 

agricultural landowners who choose not 

to participate. 

The 2014 Act requires establishment 

of ACEP to retain the provisions in the 

current easement programs by 

establishing two types of easements: 

Wetlands reserve easements (WRE) that 

protect and restore wetlands as 

previously available under WRP, and 

agricultural land easements (ALE) that 

limit nonagricultural uses on productive 

farm or grassland as previously 

available under FRPP and the easement 

component of GRP. The WRE 

component will provide technical and 

financial assistance to landowners to 

restore and protect wetlands and 

associated habitats through conservation 

easements. ACEP–WRE will address 

wetlands, wildlife habitat, soil, water, 

and related natural resource concerns 

on private lands. The ALE component 

will protect the natural resources and 

agricultural value of agricultural 

cropland, pasture and other working 

land, promote agricultural viability for 

future generations, preserve open space, 

provide scenic amenities, and protect 

grazing uses and related conservation 

values by restoring and conserving 

eligible land and limiting 

nonagricultural uses. 

The 2014 Act also identified ACEP as 

a covered program for implementation 

of the Regional Conservation 

Partnership Program (RCPP), authorized 

by Subtitle I of Title XII of the Food 

Security Act of 1985, as amended (16 

U.S.C. 3871 et seq.) RCPP is funded, in 

part, by a reservation of 7 percent of 

funds that have been allocated to 

implement covered programs, including 

7 percent of funds allocated for ACEP 

implementation. 

Impacts of ACEP 

Most of this rule’s impacts consist of 

transfer payments from the Federal 

Government to farmers, landowners, 

and producers. Although these transfers 

create incentives that very likely cause 

changes in the way society uses its 

resources, we lack data with which to 

quantify the resulting social costs or 

benefits. Under the 2014 Act, ALE and 

WRE enrollments are limited by 

funding. As set forth in the 2014 Act, 

total proposed ACEP funding and 

associated transfer payments by fiscal 

year is presented in Table ES–1. 

TABLE ES–1—PROPOSED CONSERVATION TRANSFER PAYMENTS FACILITATED BY ACEP FUNDING, INCLUDING THE

POTENTIAL RCPP ALLOCATION, FY 2014–2018 

FY 

Nominal-dollar farmbill 

authorization 

Real-dollar 1

authorization 

2.1% GDP deflator 

Real-dollar 1

authorization 

discounted at 3% 

Real-dollar 1

authorization 

discounted at 7% 

million $ million $ million $ million $ 

FY 2014 ................................................................... $400.0 $400.0 $400.0 $400.0 

FY 2015 ................................................................... 425.0 416.3 404.1 389.0 

FY 2016 ................................................................... 450.0 431.7 406.9 377.0 

FY 2017 ................................................................... 500.0 469.8 429.9 383.5 

FY 2018 ................................................................... 250.0 230.1 204.4 175.5 

Total 2 ................................................................ 2,025.0 1,947.8 1,845.4 1,725.1 

1 2013 dollars. 

2 Net present value of discounted funding levels. 

Conservation Impacts of the Program 

Land enrolled in ACEP–WRE 

easements will produce onsite and 

offsite environmental impacts. Those 

include: Restoration and protection of 

high value wetlands; control of sheet 

and rill erosion as lands are restored 

from cropland to wetlands and 

associated habitats; restoration, 

enhancement, and protection of habitat 

for fish and wildlife, including 

threatened and endangered species and 

migratory birds; improving water 

quality by filtering sediments and 

chemicals; reducing flooding and floodrelated damage; recharging 

groundwater; protecting biological 

diversity; controlling invasive species 

with planting of native vegetation; as 

well as providing opportunities for 


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1Farmland refers to agricultural land used in crop 

production and livestock production, i.e., cropland 

and pasture. For the purposes of this document, 

farmland does not include grasslands. 

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. Many 

of those conservation impacts are 

difficult to quantify at a national scale, 

but have been described by studies at an 

individual project, watershed, or flyway 

scale. 

For land enrolled in ACEP–ALE, the 

suite of conservation effects on 

protected grasslands are different than 

those on protected farmland. ACEP– 

ALE easements on grasslands limit 

agricultural activities to predominately 

grazing and haying, 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 the direct, 

indirect, and nonuse benefits, but also 

include on-farm production gains and 

carbon sequestration. 

Expected Costs of the Program 

The main program costs are the 

purchase of easements and associated 

restoration expenses under the ACEP– 

WRE component. Agricultural 

production ceases on lands enrolled in 

ACEP–WRE. At the same time, disaster 

payments, crop loss payments, and 

other commodity payments are 

eliminated. 

Through ACEP–ALE, landowners 

voluntarily restrict the land to 

agricultural uses by the sale of 

conservation easements to eligible 

entities. Local cooperating entities are 

key drivers in farmland 1 conservation 

because they benefit from the indirect 

services (offsite and nonuse benefits) 

provided by agricultural land, and in 

the case of ACEP–ALE and its 

predecessors, also share in the costs of 

purchasing conservation easements. The 

local nature of the supply of and 

demand for conservation easements, 

and the site-specific nature of the 

potential benefits complicate the 

description of conservation effects 

conducted in this analysis. 

The public and private costs of 

ACEP–ALE are: (1) The actual cost of 

purchasing the easement; (2) a reduced 

tax base which includes the opportunity 

cost of lower local economic activity, 

which for this analysis we assume is 

offset by a reduction in needed public 

infrastructure and associated taxes to 

support that infrastructure; and (3) the 

forgone economic activity fostered by 

new development. These costs are not 

social costs and we do not estimate 

them in this analysis. 

Allocation Process and Comparison to 

Legacy Programs 

NRCS allocates ACEP funding based 

upon State-generated assessments of 

priority natural resource needs and 

associated work necessary to address 

identified resource concerns. These 

State-developed assessments, following 

national guidance to assure accuracy 

and consistency, are submitted to 

agency leadership for review. At the 

national level NRCS analyzes in a 

systematic manner these state-reported 

resource needs and requests along with 

factors including NRCS landscape 

initiatives or other nationally 

established conservation priorities; 

regional factors such as development 

pressure, migratory bird flyways, multistate watersheds with water quality 

resource concerns; existing State 

capacity, workload, and performance; 

and other factors. This approach 

provides flexibility to address nationally 

and locally important natural resource 

concerns. Once funds are allocated to 

the States, individual project selection 

occurs at the State level based on the 

prioritization of the eligible applications 

using the NRCS ranking criteria. 

Over the course of the 2008 Farm Bill, 

the three easement programs (WRP, 

GRP, and FRPP) received an average of 

$691 million annually, which was 

comprised of $513 million WRP, $138 

million in FRPP, and $39 million in 

GRP. All three easement programs were 

combined under ACEP and the purposes 

of FRPP and GRP were combined under 

the ACEP–ALE component. The average 

annual funding available under the new 

ACEP program will be approximately 

$368 million annually, about 53 percent 

of the amount previously available 

under the repealed programs. 

Conclusions 

Executive Summary Table ES–2 

provides an overview of the potential 

benefits from both sub-program areas of 

ACEP. For the private landowner, the 

end products of the ACEP–WRE include 

assurances of the restoration of the 

property and associated recreational 

use, the potential to engage in 

compatible uses on the property, and 

the elimination of negative impacts to 

agricultural operations on the property. 

Outcomes from the private landowner 

view of the ACEP–ALE include the 

long-term protection of the agricultural 

nature of the land and potential 

increases in productivity (from 

implementing the ALE plan) and 

sustainability of the local agricultural 

market (from local production). In 

addition, the private landowner, along 

with the general public, will reap the 

benefits of recreational waterfowl 

harvest, upland species harvest, and 

agri-tourism. Also in many cases 

easement that protect farmsteads under 

ACEP–ALE will provide the general 

public with an opportunity to engage 

with and obtain food products from a 

local farm producer. 

Both ACEP–WRE and ACEP–ALE may 

provide benefits that are achieved for 

society as a whole, within the 

limitations of a voluntary program. 

These include: Improved water quality 

and water quantity; carbon 

sequestration; restoration of habitat for 

endangered or threatened wildlife 

species; flood prevention and 

protection; and improvements to scenic 

quality and rural characteristics. We 

note that agricultural lands and 

wetlands sequester carbon at higher 

rates than lands converted to 

development. 

Participation in ACEP is voluntary 

and landowners participate in the 

program for many reasons, such as 

estate planning, income diversity, 

expanded recreational opportunity, 

improving agricultural efficiency, and 

their personal natural resource ethic. 

Landowners may also participate in part 

to meet requirements they face in 

managing their operation. For example, 

a landowner may decide to enroll acres 

in ACEP in order to protect highly 

productive grasslands from conversion 

to crop production and thus limit soil 

and chemical runoff into a nearby 

stream. Such actions may help 

demonstrate compliance with other 

State or Federal requirements, such as 

State plans to meet Federal TMDL 

requirements. ACEP may help 

landowners meet any compliance 

responsibilities that they may have 

under the Endangered Species Act. 

Also, ACEP–WRE implementation 

provides new habitat through the 

restoration of degraded wetlands that 

benefits wildlife. Even in the absence of 

a FWS critical habitat listing, as is 


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generally the case, land enrolled in 

ACEP could benefit at-risk species. 

NRCS has a long-term responsibility 

to ensure ACEP program objectives are 

achieved and statutory requirements are 

met on these lands. Monitoring policy 

for these lands is in place to guide 

NRCS in meeting these responsibilities 

and to maintain working relationships 

with landowners. In addition, the 

Statement of Federal Financial 

Accounting Standards 29 (SFFAS 29) 

considers easements held by the United 

States as Stewardship Lands which 

must be accounted for as part of the 

agency’s annual financial accountability 

reporting. The SFFAS 29 requires that 

the ‘‘Condition’’ of all Stewardship 

Lands be reported regularly. Therefore, 

NRCS incorporates this additional 

financial accounting responsibility to 

report on the condition of Stewardship 

Lands into its monitoring requirements 

by assessing compliance with the terms 

of the easement and whether the 

easement is meeting program objectives. 

NRCS added functionality to its 

easement database to aid its State 

Offices in tracking monitoring events 

and observations. 

NRCS requires an annual monitoring 

review of all ACEP easements to ensure 

compliance with easement terms and 

that program purposes are being met. 

For ACEP–ALE easements, NRCS 

requires the eligible entity to submit 

annual monitoring reports to NRCS for 

all ALE easements it holds, while NRCS 

conducts the annual monitoring of all 

ACEP–WRE easements. 

Data, however, currently do not exist 

that would allow for parsing, or 

attributing, different potential benefits 

to the suite of motivations that might 

result in a producer participating in this 

program. What can be said, is that those 

actions benefit the public as a whole 

and the ACEP easement payment 

compensates the landowner for the 

rights they are encumbering as a result 

of participating in ACEP. In addition, 

those transfer payments from the 

Federal Government to farmers, 

landowners, and producers may also 

create incentives that cause changes in 

the way society uses its resources. As 

mentioned, we lack data with which to 

estimate and attribute the overall social 

costs or benefits. 

NRCS is committed to the continual 

improvement of its collection and 

analysis of administrative and 

programmatic data to ensure that 

program benefits are being achieved 

through adoptions and implementation 

of targeted resource-based policies and 

procedures. Given the existing 

limitation and lack of data, NRCS will 

investigate ways to quantify the 

incremental benefits obtained from this 

program. 

TABLE ES–2—POTENTIAL BENEFITS FROM THE AGRICULTURAL CONSERVATION EASEMENTS PROGRAM DESCRIBED IN THE

2014 FARM BILL BY RECIPIENT

Ecosystem function Ecosystem service 

Wetlands 

reserve 

easements 

Agricultural 

lands 

easements 

Benefits likely to accrue to private landowner 

Tree growth medium .................................................... Commercial timber harvest .......................................... √ ........................

Fish habitat ................................................................... Commercial fish harvest ............................................... √ ........................

Grassland preservation ................................................ Forage production ........................................................ √ √ 

Benefits that potentially accrue to both private landowner and public 

Wildlife habitat .............................................................. Recreational waterfowl harvest .................................... √ ........................

Wildlife habitat .............................................................. Recreational upland species harvest ........................... √ √ 

Land for Food Production ............................................. Local Food Production ................................................. ........................ √ 

Recreation Opportunities .............................................. Agri-tourism .................................................................. √ √ 

Potential Social Benefits 

Flood retention .............................................................. Reduced flood flows/peaks .......................................... √ √ 

Water filtration .............................................................. Water Quality ................................................................ √ √ 

Endangered and Threatened wildlife habitat ............... Biodiversity ................................................................... √ √ 

Open Space .................................................................. Scenic quality and rural characteristics ........................ √ √ 

Carbon Sequestration ................................................... Carbon Storage ............................................................ √ √ 

Groundwater Recharge ................................................ Water Quantity .............................................................. √ √ 

Summary of Request for Comments 

NRCS seeks general comments related 

to how to make the provisions easier to 

understand. In addition, NRCS seeks 

public comment related to the ACEP 

regulation adopted by this interim rule, 

including seeking comment on the 

following topics: 

• Access—Under ALE, NRCS has 

modified the requirements for what 

constitutes sufficient access to the 

easement to be less stringent than what 

is required by the Department of Justice 

title standards for WRE easements. 

Should NRCS adopt this greater 

flexibility for eligible entities on what 

constitutes sufficient access for ALE 

easements and what specific conditions 

should be considered sufficient access 

under ALE to ensure the federal 

investment is protected? 

• New terms—NRCS defined several 

new terms to implement new statutory 

authorities. What improvements to the 

definitions and implementation of the 

associated provisions should NRCS 

incorporate? The new terms include 

active agricultural production, 

agricultural land easement plan, the 

easement administration definitions 

(easement modification, easement 

exchange, easement subordination, and 

easement termination), and grassland of 

special environmental significance. 

• Project Selection Criteria and 

Weightings—What additional criteria 

should NRCS adopt in its allocation of 

funds and selection of ACEP projects, 

what weighting should NRCS provide to 

existing or new criteria, should this 

weighting of particular ranking factors 

occur at the National or State level, and 

what other changes would assist NRCS 

in selecting projects that best further 

ACEP purposes. 

• ALE Valuation methods—What 

other types of ‘‘industry methods’’ 

should NRCS allow for determining 


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agricultural land easement ‘‘fair market 

value’’ for Federal match requirements? 

• Projects of Special Significance— 

Did NRCS select appropriate criteria for 

determining projects of special 

significance and what other criteria 

should NRCS consider? 

• Standard Minimum Easement Deed 

Terms—NRCS has developed a standard 

set of minimum deed terms that 

implement the minimum requirements 

that must be addressed by provisions in 

every ALE deed. What improvements 

can NRCS make to these standard deed 

terms? 

List of Subjects in 7 CFR Part 1468 

Agricultural operations, conservation 

practices, conservation payments, 

conservation easements, farmland 

protection, grasslands, natural 

resources, soil conservation, wetlands, 

wildlife. 

For the reasons stated in the 

preamble, the Natural Resources 

Conservation Service revises part 1468 

of Title 7 of the CFR to read as follows: 

PART 1468—AGRICULTURAL 

CONSERVATION EASEMENT 

PROGRAM 

Subpart A—General Provisions 

Sec. 

1468.1 Applicability 

1468.2 Administration. 

1468.3 Definitions. 

1468.4 Appeals. 

1468.5 Scheme or device. 

1468.6 Subordination, exchange, 

modification, and termination. 

1468.7 Transfer of land. 

1468.8 Payments not subject to claims. 

1468.9 Assignments. 

1468.10 Environmental markets. 

Subpart B—Agricultural Land Easements 

1468.20 Program requirements. 

1468.21 Application procedures. 

1468.22 Establishing priorities, ranking 

considerations and application selection. 

1468.23 Cooperative agreements. 

1468.24 Compensation and funding for 

agricultural land easements. 

1468.25 Agricultural land easement deeds. 

1468.26 Agricultural land easement plan. 

1468.27 Eligible entity certification. 

1468.28 Violations and remedies. 

Subpart C—Wetland Reserve Easements 

1468.30 Program requirements. 

1468.31 Application procedures. 

1468.32 Establishing priorities, ranking 

consideration and project selection. 

1468.33 Enrollment process. 

1468.34 Compensation and funding for 

wetland reserve easements and 30-year 

contracts. 

1468.35 Wetland Reserve Enhancement 

Partnerships. 

1468.36 WRPO payments. 

1468.37 Easement and 30-year contract 

participation requirements. 

1468.38 The WRPO development. 

1468.39 Violations and remedies. 

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

U.S.C. 3865–3865d. 

Subpart A—General Provisions 

§ 1468.1 Applicability. 

(a) The regulations in this part set 

forth requirements, policies, and 

procedures for implementation of the 

Agricultural Conservation Easement 

Program (ACEP) administered by the 

Natural Resources Conservation Service 

(NRCS). 

(b) The NRCS Chief may implement 

ACEP in any of the 50 States, the 

District of Columbia, Commonwealth of 

Puerto Rico, Guam, the Virgin Islands of 

the United States, American Samoa, and 

the Commonwealth of the Northern 

Mariana Islands. 

(c) Subpart B of this part sets forth 

additional requirements, policies, and 

procedures for implementation of the 

Agricultural Land Easements (ALE) 

component of ACEP. 

(d) Subpart C of this part sets forth 

additional requirements, policies, and 

procedures for the Wetland Reserve 

Easement (WRE) component of ACEP. 

(e) Easement lands previously 

enrolled under the Farm and Ranch 

Lands Protection Program (7 CFR part 

1491), the Grassland Reserve Program (7 

CFR part 1415), and the Wetlands 

Reserve Program (7 CFR part 1467) are 

considered enrolled in ACEP. Existing 

easements and agreements remain valid 

and enforceable, and subject to the legal 

framework in place at the time of 

enrollment, except that the long-term 

stewardship and management of these 

easements, and any ACEP funding made 

available for implementation, will be in 

accordance with this part. 

§ 1468.2 Administration. 

(a) The regulations in this part will be 

administered under the general 

supervision and direction of the NRCS 

Chief. 

(b) NRCS may seek advice from the 

State Technical Committee on the 

identification of lands of statewide 

importance, development of a priority 

ranking process, and related technical 

matters. 

(c) NRCS may delegate at any time its 

wetlands reserve easement management 

responsibilities to other Federal or State 

agencies or conservation organizations 

that have appropriate authority, 

expertise and technical and financial 

resources, as determined by NRCS, to 

carry out such delegated 

responsibilities. 

(d) NRCS may delegate at any time its 

wetlands reserve easement monitoring 

and enforcement responsibilities to 

other Federal or State agencies that have 

the appropriate authority, expertise, and 

technical and financial resources, as 

determined by NRCS, to carry out such 

delegated responsibilities. 

(e) NRCS may consult Federal or State 

agencies, conservation districts, or other 

organizations in program 

administration. No determination by 

these agencies or organizations will 

compel NRCS to take any action which 

NRCS determines does not serve the 

purposes of the program established by 

this part. 

(f) The Chief may allocate funds for 

purposes related to: encouraging 

enrollment by beginning farmers or 

ranchers, socially disadvantaged farmers 

or ranchers, limited resource farmers or 

ranchers, Indian tribes, and veteran 

farmers or ranchers as authorized by 16 

U.S.C. 3844; special pilot programs for 

easement management and monitoring; 

cooperative agreements with other 

agencies and organizations to assist with 

program implementation; coordination 

of easement enrollment across State 

boundaries; coordination of the 

development of easement plans; or for 

other goals of the ACEP found in this 

part. 

(g) No delegation in the 

administration of this part to lower 

organizational levels will preclude the 

Chief from making any determinations 

under this part, re-delegating to other 

organizational levels, or from reversing 

or modifying any determination made 

under this part. 

(h) The Chief may modify or waive 

nonstatutory, discretionary provisions 

of this part if the Chief determines the 

waiver of such discretionary provision 

is necessary to further the purposes of 

ACEP under the Regional Conservation 

Partnership Program (RCPP) authorized 

by Subtitle I of Title XII of the Food 

Security Act of 1985. The waiver must 

further ACEP purposes while also 

addressing whether the purpose and 

conservation objectives of the RCPP 

project(s) are consistent with the 

specific Wetland Reserve Easement 

(WRE) or Agricultural Land Easement 

(ALE) conservation purpose and 

objectives. No waiver will result in 

reducing the quality of wetland wildlife 

habitat that is restored under WRE, or 

the protection for agricultural viability 

under ALE. 

(i) To assist in RCPP implementation 

the Chief may also waive the 

applicability of the limitation in section 

1001D(b)(2) of the Food Security Act of 

1985 for participating landowners if the 

Chief determines that the waiver is 

necessary to fulfill RCPP objectives. 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 11049 

§ 1468.3 Definitions. 

The following definitions will apply 

to this part, and all documents issued in 

accordance with this part, unless 

specified otherwise: 

30-year Contract means an ACEP– 

WRE contract that is for a duration of 30 

years and is limited to acreage owned by 

Indian Tribes. 

Access means legal and physical 

ingress and egress to the entire easement 

area over adjacent or contiguous lands 

for the exercise of any of the rights or 

interests under the easement for the 

duration of its term for the purposes of 

the program. Access for easement 

enrollments must be described in the 

easement deed. 

Acreage owned by Indian Tribes 

means lands held in private ownership 

by an Indian Tribe or individual Tribal 

member and lands held in trust by a 

native corporation, Tribe or the Bureau 

of Indian Affairs. 

Active agricultural production means 

that on lands that meet the definition of 

being in agricultural use, agricultural or 

forest-related products or livestock are 

being produced or have been produced 

within one year of the date of 

application by an eligible entity for 

funding under subpart B of this part. 

Land may also be considered in active 

agricultural production if it is current or 

former CRP land that is planted, 

considered planted, or in conserving use 

as determined by NRCS. 

Agreement means the document that 

specifies the obligations and rights of 

NRCS and any person, legal entity, or 

eligible entity who is participating in 

the program or any document that 

authorizes the transfer of assistance 

between NRCS and a third party for 

provision of authorized goods and 

services associated with program 

implementation. Agreements may 

include but are not limited to an 

agreement to purchase, a wetland 

reserve easement restoration agreement, 

a cooperative agreement, a partnership 

agreement, or an interagency agreement. 

Agreement to purchase means the 

legal document that is the equivalent of 

a real estate purchase and sale contract. 

The landowner signs the agreement to 

purchase, which is the authorization for 

NRCS to proceed with the wetland 

reserve easement acquisition process 

and to incur costs for surveys, title 

clearance, due diligence activities, and 

closing procedures on the easement. 

Agricultural commodity means any 

agricultural commodity planted and 

produced in a State by annual tilling of 

the soil, including tilling by one-trip 

planters or sugarcane planted and 

produced in a State. 

Agricultural uses means those 

activities defined by a State’s farm or 

ranch land protection program, or where 

no program exists, by the State 

agricultural use tax assessment program. 

However, if NRCS determines that a 

State definition of agricultural use is so 

broad that an included use would 

constitute a violation of Federal law, 

degrade soils, the agricultural nature of 

the land or the related natural resources, 

NRCS reserves the right to impose 

greater deed restrictions on the property 

to be subject to an agricultural land 

easement. These deed restrictions 

would narrow the State definition of 

agricultural use in order to meet Federal 

law, or to protect soils, the agricultural 

nature of the land, or related natural 

resources. 

Agricultural land easement means an 

easement or other interest in eligible 

land that is conveyed for the purposes 

of protecting natural resources and the 

agricultural nature of the land, and of 

promoting agricultural viability for 

future generations, and permits the 

landowner the right to continue 

agricultural production and related uses 

subject to an agricultural land easement 

plan. 

Agricultural land easement plan 

means the document developed by 

NRCS or provided by the eligible entity 

and approved by NRCS, in consultation 

with the eligible entity and landowner, 

that describes the activities which 

promote the long-term viability of the 

land to meet the purposes for which the 

easement was acquired. The agricultural 

land easement plan includes a 

description of the farm or ranch 

management system, conservation 

practices that address the resource 

concerns for which the easement was 

enrolled, and any required component 

plans such as a grasslands management 

plan, forest management plan, or 

conservation plan as defined in this 

part. Where appropriate, the agricultural 

land easement plan will include 

conversion of highly erodible cropland 

to less intensive uses. 

Beginning farmer or rancher means an 

individual or legal entity who: 

(1) Has not operated a farm or ranch, 

or who has operated a farm or ranch for 

not more than 10 consecutive years and 

who will materially and substantially 

participate in the operation of the farm 

or ranch. This requirement applies to all 

members of a legal entity. 

(2) In the case of an individual, 

individually, or with the immediate 

family, material and substantial 

participation requires that the 

individual provide substantial day-today labor and management of the farm 

or ranch consistent with the practices in 

the county or State where the farm is 

located. 

(3) In the case of a legal entity or joint 

operation, all members must materially 

and substantially participate in the 

operation of the farm or ranch. Material 

and substantial participation requires 

that each of the members provide some 

amount of the management or labor and 

management necessary for day-to-day 

activities, such that if each of the 

members did not provide these inputs, 

operation of the farm or ranch would be 

seriously impaired. 

Certified entity means an eligible 

entity that NRCS has determined to 

meet the certification requirements in 

1468.27 for the purposes of ACEP–ALE. 

Chief means the Chief of the Natural 

Resources Conservation Service or the 

person delegated the authority to act for 

the Chief. 

Commenced conversion wetland 

means a wetland or converted wetland 

for which the Farm Service Agency 

(FSA) has determined that the wetland 

manipulation was contracted for, 

started, or for which financial obligation 

was incurred before December 23, 1985. 

Commodity Credit Corporation (CCC) 

is a wholly-owned government 

corporation within the Department of 

Agriculture. 

Compatible use means a use or 

activity conducted on a wetland reserve 

easement that NRCS determines, in its 

sole discretion, is consistent with the 

long-term protection and enhancement 

of the wetland and other natural values 

of the easement area when performed 

according to amount, method, timing, 

frequency, intensity, and duration 

limitations prescribed by NRCS. 

Conservation plan is the document 

that— 

(1) Applies to highly erodible 

cropland; 

(2) Describes the conservation system 

applicable to the highly erodible 

cropland and describes the decisions of 

the person with respect to location, land 

use, tillage systems, and conservation 

treatment measures and schedules and 

where appropriate, will include 

conversion of highly erodible cropland 

to less intensive uses; and 

(3) Is developed in accordance with 7 

CFR part 12. 

Conservation practice means a 

specified treatment, such as a 

vegetative, structural, or land 

management practice, that is planned 

and applied according to NRCS 

standards and specifications. 

Conservation Reserve Program (CRP) 

means the program administered by the 

CCC pursuant to 16 U.S.C. 3831–3836. 

Converted wetland means a wetland 

that has been drained, dredged, filled, 


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leveled, or otherwise manipulated 

(including the removal of woody 

vegetation or any activity that results in 

impairing or reducing the flow, 

circulation, or reach of water) for the 

purpose of, or to have the effect of, 

making possible the production of an 

agricultural commodity if such 

production would not have been 

possible but for such action, and before 

such action such land was wetland, 

farmed wetland, or farmed-wetland 

pasture and was neither highly erodible 

land nor highly erodible cropland. 

Cooperative agreement means the 

document that specifies the obligations 

and rights of NRCS and eligible entities 

participating in the program under 

subpart B or the document that 

authorizes the transfer of assistance 

between NRCS and a non-Federal entity 

associated with implementation of the 

program under subpart C. 

Cost-share payment means the 

payment made by NRCS to an eligible 

entity for the purchase of an ALE 

easement as set forth in subpart B of this 

part. 

Dedicated fund means an account 

held by a nongovernmental organization 

which is sufficiently capitalized for the 

purpose of covering expenses associated 

with the management, monitoring, and 

enforcement of agricultural land 

easements and where such account 

cannot be used for other purposes. 

Easement area means the portion of a 

parcel that is encumbered by an ACEP 

easement. 

Easement exchange means a real 

estate transaction where NRCS, on 

behalf of the United States and in its 

sole discretion, relinquishes all or a 

portion of its real property rights or 

interests in an easement which are 

replaced by real property rights or 

interests granted through an easement 

that has equivalent or greater 

conservation value, acreage, and 

economic value to the United States on 

land that is not adjacent to the original 

easement area. NRCS is not required to 

exchange any of its rights in an 

easement, and easement exchanges are 

discretionary, voluntary, real estate 

transactions between the United States, 

landowner, and other parties with an 

interest in the easement. 

Easement modification means a real 

estate transaction where NRCS, on 

behalf of the United States and in its 

sole discretion, agrees to adjust the 

boundaries or terms of an easement that 

will result in equivalent or greater 

conservation value, acreage, and 

economic value to the United States, 

and the modification only involves 

lands within or physically adjacent to 

the original easement area. NRCS is not 

required to modify any of its rights in 

an easement, and easement 

modifications are discretionary, 

voluntary, real estate transactions 

between the United States, landowner, 

and other parties with an interest in the 

easement that are subject to the 

requirements of this part. 

Easement payment means the 

consideration paid to a participant or 

their assignee for an easement conveyed 

to the United States under the ACEP– 

WRE, or the consideration paid to an 

Indian Tribe or Tribal members for 

entering into 30-year contracts. 

Easement restoration agreement 

means the agreement or contract NRCS 

enters into with the landowner or a 

third party to implement the WRPO on 

a wetland reserve easement or 30-year 

contract enrollment. 

Easement subordination means a real 

estate transaction where NRCS, on 

behalf of the United States and in its 

sole discretion, agrees to subordinate its 

real property rights on all or a portion 

of an easement as part of an easement 

exchange or easement modification. The 

subordinated rights will be replaced by 

rights that are of equivalent or greater 

conservation value, acreage, and 

economic value to the United States. 

NRCS is not required to subordinate any 

of its rights in an easement, and 

easement subordinations are 

discretionary, voluntary, real estate 

transactions between the United States, 

landowner, and other parties with an 

interest in the easement that are subject 

to the requirements of this part. 

Easement termination means a real 

estate transaction where NRCS, on 

behalf of the United States and in its 

sole discretion, agrees to terminate its 

rights in an easement or portion thereof 

to facilitate a project that addresses a 

compelling public need for which there 

is no practicable alternative and such 

termination action will result in 

equivalent or greater conservation value 

and economic value to the United 

States, and the United States is provided 

compensation for such termination. 

NRCS is not required to terminate any 

of its rights in an easement, and 

easement terminations are discretionary, 

voluntary, real estate transactions 

between the United States, landowner, 

and other parties that are subject to the 

requirements of this part. Unless and 

until the parties enter into a binding 

termination agreement, any party may 

withdraw its approval of a termination 

proposal at any time during the 

termination process. 

Eligible activity means an action other 

than a conservation practice that is 

included in the Wetland Reserve Plan of 

Operations (WRPO), as applicable, and 

that has the effect of alleviating 

problems or improving the condition of 

the resources, including ensuring proper 

management or maintenance of the 

wetland functions and values restored, 

protected, or enhanced through an 

easement or 30-year contract. 

Eligible entity means an Indian Tribe, 

State government, local government, or 

a nongovernmental organization which 

has a farmland or grassland protection 

program that purchases agricultural 

land easements for the purpose of 

protecting agriculture use and related 

conservation values, including grazing 

uses and related conservation values, by 

limiting conversion to nonagricultural 

uses of the land. 

Eligible land means private or Tribal 

land that NRCS has determined to meet 

the requirements of § 1468.20 or 

§ 1468.30 of this part. 

Fair market value means the value of 

an agricultural land easement as 

determined using the Uniform 

Standards of Professional Appraisal 

Practice, an areawide market analysis or 

survey, or another industry-approved 

method approved by the Chief, as 

established in subpart B or, for a 

wetland reserve easement, the value of 

the land as determined using the 

Uniform Standards of Professional 

Appraisal Practices or areawide market 

analysis or survey, as established in 

subpart C. 

Farm and ranch land of local 

importance means farm or ranch land 

used to produce food, feed, fiber, forage, 

bio-fuels, and oilseed crops that are 

locally important but not identified as 

having national or statewide 

importance. Criteria for defining and 

delineating this land are to be 

determined by the appropriate local 

agency or agencies. Farmlands of local 

importance may include tracts of land 

that have been designated for 

agriculture by local ordinance. 

Farm and ranch land of statewide 

importance means, in addition to prime 

and unique farmland, land that is of 

statewide importance for the production 

of food, feed, fiber, forage, bio-fuels, and 

oil seed crops. Criteria for defining and 

delineating this land are to be 

determined by the appropriate State 

agency or agencies. Generally, 

additional farmlands of statewide 

importance include those that are nearly 

prime farmland and that economically 

produce high yields of crops when 

treated and managed according to 

acceptable farming methods. Some may 

produce as high a yield as prime 

farmlands if conditions are favorable. In 

some States, additional farmlands of 

statewide importance may include tracts 

of land that have been designated for 


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agriculture by State law in accordance 

with 7 CFR part 657. 

Farm or ranch succession plan means 

a general plan to address the 

continuation of some type of 

agricultural business on the enrolled 

land. The farm or ranch succession plan 

may include specific intra-family 

succession agreements or business asset 

transfer strategies to create 

opportunities for veteran farmers or 

ranchers or other historically 

underserved landowners. 

Farm Service Agency (FSA) is an 

agency of the United States Department 

of Agriculture. 

Field Office Technical Guide (FOTG) 

means the official local NRCS source of 

resource information and interpretations 

of guidelines, criteria, and requirements 

for planning and applying conservation 

practices and conservation management 

systems. The FOTG contains detailed 

information on the conservation of soil, 

water, air, plant, animal, and energy 

resources applicable to the local area for 

which it is prepared. 

Fish and Wildlife Service (FWS) is an 

agency of the United States Department 

of the Interior. 

Forest land means a land cover or use 

category that is at least 10 percent 

stocked by single-stemmed woody 

species of any size that will be at least 

13 feet tall at maturity. Also included is 

land bearing evidence of natural 

regeneration of tree cover (cutover forest 

or abandoned farmland) that is not 

currently developed for nonforest use. 

Ten percent stocked, when viewed from 

a vertical direction, equates to an aerial 

canopy cover of leaves and branches of 

25 percent or greater. 

Forest land of statewide importance 

means forest land that NRCS, in 

consultation with the State Technical 

Committee, identifies as having 

ecological or economic significance 

within the State and may include 

forested areas or regions of the State that 

have been identified through statewide 

assessments and strategies conducted 

pursuant to State or Federal law. 

Forest management plan means a sitespecific plan developed or approved by 

NRCS, in consultation with the eligible 

entity and the landowner, that describes 

management practices to conserve, 

protect, and enhance the viability of the 

forest land. Forest management plans 

may include a forest stewardship plan, 

as specified in section 5 of the 

Cooperative Forestry Assistance Act of 

1978 (16 U.S.C. 2103a), another practice 

plan approved by the State Forester, or 

another plan determined appropriate by 

NRCS. The plan complies with 

applicable Federal, State, Tribal, and 

local laws, regulations, and permit 

requirements. 

Grassland of special environmental 

significance means grasslands that 

contain little or no noxious or invasive 

species, as designated or defined by 

State or Federal law; are subject to the 

threat of conversion to nongrassland 

uses or fragmentation; and the land is: 

(1)(i) Rangeland, pastureland, or 

shrubland on which the vegetation is 

dominated by native grasses, grass-like 

plants, shrubs, or forbs, or 

(ii) Improved, naturalized pastureland 

and rangeland; and 

(2)(i) Provides, or could provide, 

habitat for threated or endangered 

species or at-risk species, 

(ii) Protects sensitive or declining 

native prairie or grassland types, or 

(iii) Provides protection of highly 

sensitive natural resources. 

Grasslands management plan means 

the site-specific plan developed or 

approved by NRCS that describes the 

management system and practices to 

conserve, protect, and enhance the 

viability of the grassland. The 

grasslands management plan will 

include a description of the grassland 

management system consistent with 

NRCS practices contained in the FOTG, 

including the prescribed grazing 

standard for easements that will be 

managed using grazing; the management 

of the grassland for grassland-dependent 

birds, animals, or other resource 

concerns for which the easement was 

enrolled; the permissible and prohibited 

activities; and any associated restoration 

plan or conservation plan. The 

grasslands management plan is a 

component of either an agricultural land 

easement plan or wetland reserve plan 

of operations. 

Historical and archaeological 

resources mean resources that are: 

(1) Listed in the National Register of 

Historic Places (established under the 

National Historic Preservation Act 

(NHPA), 16 U.S.C. 470, et seq.); 

(2) Formally determined eligible for 

listing in the National Register of 

Historic Places (by the State Historic 

Preservation Office (SHPO) or Tribal 

Historic Preservation Office (THPO) and 

the Keeper of the National Register in 

accordance with section 106 of the 

NHPA); 

(3) Formally listed in the State or 

Tribal Register of Historic Places of the 

SHPO (designated under section 

101(b)(1)(B) of the NHPA) or the THPO 

(designated under section 101(d)(1)(C) 

of the NHPA); or 

(4) Included in the SHPO or THPO 

inventory with written justification as to 

why it meets National Register of 

Historic Places criteria. 

Historically underserved landowner 

means a beginning, limited resource, or 

socially disadvantaged farmer or 

rancher. 

Imminent harm means easement 

violations or threatened violations that, 

as determined by NRCS, would likely 

cause immediate and significant 

degradation to the conservation values 

for which the easement was acquired. 

Impervious surface means surfaces 

that are covered by asphalt, concrete, 

roofs, or any other surface that does not 

allow water to percolate into the soil. 

Indian Tribe means any Indian Tribe, 

band, nation, pueblo, or other organized 

group or community, including any 

Alaska Native village or regional or 

village corporation as defined in or 

established pursuant to the Alaska 

Native Claims Settlement Act (43 U.S.C. 

1601 et seq.), that is eligible for the 

special programs and services provided 

by the United States to Indians because 

of their status as Indians, including, for 

the purposes of this part, pueblos. 

Land evaluation and site assessment 

system means the land evaluation 

system approved by NRCS and used, 

when applicable, to rank land for farm 

and ranch land protection purposes 

based on soil potential for agriculture, 

as well as social and economic factors 

such as location, access to markets, and 

adjacent land use. For additional 

information see the Farmland Protection 

Policy Act regulation at 7 CFR part 658. 

Landowner means a person, legal 

entity, or Indian Tribe having legal 

ownership of land and those who may 

be buying eligible land under a 

purchase agreement. The term 

landowner may include all forms of 

collective ownership including joint 

tenants and tenants-in-common, and 

includes heirs, successors, assigns, and 

anyone claiming under them. State 

governments, local governments, and 

nongovernmental organizations that 

qualify as eligible entities are not 

eligible as landowners, unless otherwise 

determined by the Chief. 

Lands substantially altered by 

flooding means areas where flooding has 

created wetland hydrologic conditions 

which, with a high degree of certainty, 

will develop and retain wetland soil, 

hydrology, and vegetation 

characteristics over time. 

Limited resource farmer or rancher 

means either: 

(1)(i) A person with direct or indirect 

gross farm sales not more than the 

current indexed value in each of the 

previous two fiscal years (adjusted for 

inflation using Prices Paid by Farmer 

Index as compiled by National 

Agricultural Statistical Service), and 


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(ii) Has a total household income at or 

below the national poverty level for a 

family of four, or less than 50 percent 

of county median household income in 

each of the previous two years (to be 

determined annually using Commerce 

Department Data); or 

(2) A legal entity or joint operation if 

all individual members independently 

qualify under paragraph (1) of this 

definition. 

Maintenance means work performed 

to keep the wetland reserve easement 

functioning for program purposes for 

the duration of the enrollment period. 

Maintenance includes actions and work 

to manage, prevent deterioration, repair 

damage, or replace conservation 

practices or activities on a wetland 

reserve easement, as approved by NRCS. 

Natural Resources Conservation 

Service (NRCS) means an agency of the 

U.S. Department of Agriculture (USDA), 

including when NRCS carries out 

program implementation using the 

funds, facilities, or authorities of the 

CCC. 

Nongovernmental organization means 

any organization that for purposes of 

qualifying as an eligible entity under 

subpart B: 

(1) Is organized for, and at all times 

since, the formation of the organization 

and has been operated principally for 

one or more of the conservation 

purposes specified in clause (i), (ii), (iii), 

or (iv) of section 170(h)(4)(A) of the 

Internal Revenue Code of 1986; 

(2) Is an organization described in 

section 501(c)(3) of that Code that is 

exempt from taxation under 501(a) of 

that Code; and 

(3) Is described— 

(i) In section 509(a)(1) and (2) of that 

Code, or 

(ii) Is described in section 509(a)(3) of 

that Code and is controlled by an 

organization described in section 

509(a)(2) of that Code. 

Other interests in land include any 

right in real property other than 

easements that are recognized by State 

law that the Chief determines can be 

purchased by an eligible entity to 

further the agricultural use of the land 

and other ACEP–ALE purposes. 

Other productive soils means farm 

and ranch land soils, in addition to 

prime farmland soils, that include 

unique farmland and farm and ranch 

land of statewide and local importance. 

Parcel means the defined area of land 

and may be a portion or all of the area 

of land that is owned by the landowner. 

Participant means a person, legal 

entity, Indian Tribe, native corporation, 

or eligible entity who has been accepted 

into the program and who is receiving 

payment or who is responsible for 

implementing the terms and conditions 

of an agreement to purchase or 30-year 

contract, or the cooperative agreement 

for agricultural land easements. 

Pending offer means a written bid, 

contract, or option extended to a 

landowner by an eligible entity to 

acquire an agricultural conservation 

easement before the legal title to these 

rights has been conveyed for the 

purposes of protecting the agricultural 

use and future viability, including the 

protection of grazing uses and related 

conservation values, by limiting 

nonagricultural uses of the land or by 

restoring and conserving eligible land. 

Permanent easement means an 

easement that lasts in perpetuity. 

Person means a natural person. 

Prime farmland means land that has 

the best combination of physical and 

chemical characteristics for producing 

food, feed, fiber, forage, oilseed, and 

other agricultural crops with minimum 

inputs of fuel, fertilizer, pesticides, and 

labor without intolerable soil erosion, as 

determined by NRCS. 

Private land means land that is not 

owned by a governmental entity and 

includes acreage owned by Indian 

Tribes, as defined in this part. 

Projects of special significance means 

projects identified by the Chief using 

the criteria identified in § 1468.24 of 

this part. 

Right of enforcement means the right 

of the United States to inspect the 

easement area and to enforce the 

easement entered into under this part in 

those instances in which the grantee of 

the easement does not fully protect the 

interests provided to the grantee under 

the easement. 

Riparian areas means areas of land 

that occur along streams, channels, 

rivers, and other water bodies. These 

areas are normally distinctly different 

from the surrounding lands because of 

unique soil and vegetation 

characteristics, may be identified by 

distinctive vegetative communities that 

are reflective of soil conditions normally 

wetter than adjacent soils, and generally 

provide a corridor for the movement of 

wildlife. 

Socially disadvantaged farmer or 

rancher means a producer who is a 

member of a group whose members 

have been subjected to racial or ethnic 

prejudices without regard to its 

members’ individual qualities. For an 

entity, at least 50 percent ownership in 

the business entity must be held by 

socially disadvantaged individuals. 

State Conservationist means the 

NRCS employee authorized to direct 

and supervise NRCS activities in a State, 

and includes the Directors of the 

Caribbean Area (Puerto Rico and the 

Virgin Islands), or the Pacific Islands 

Area (Guam, American Samoa, and the 

Commonwealth of the Northern Mariana 

Islands). 

State Technical Committee means a 

committee established pursuant to 16 

U.S.C. 3861 and 7 CFR part 610, subpart 

C. 

Unique farmland means land other 

than prime farmland that is used for the 

production of specific high-value food 

and fiber crops as determined by NRCS. 

It has the special combination of soil 

quality, location, growing season, and 

moisture supply needed to 

economically produce sustained high 

quality or high yields of specific crops 

when treated and managed according to 

acceptable farming methods. Examples 

of such crops include citrus, tree nuts, 

olives, cranberries, fruits, and 

vegetables. Additional information on 

the definition of prime, unique, or other 

productive soil can be found in 7 CFR 

part 657 and 7 CFR part 658. 

Veteran farmer or rancher means a 

producer who meets the definition in 

section 2501(e) of the Food, Agriculture, 

Conservation, and Trade Act of 1990, as 

amended (7 U.S.C. 2279(e)). 

Wetland means land that: 

(1) Has a predominance of hydric 

soils; 

(2) Is inundated or saturated by 

surface or groundwater at a frequency 

and duration sufficient to support a 

prevalence of hydrophytic vegetation 

typically adapted for life in saturated 

soil conditions; and 

(3) Supports a prevalence of such 

vegetation under normal circumstances. 

Wetland reserve easement means a 

reserved interest easement which is an 

interest in land defined and delineated 

in a deed whereby the landowner 

conveys all rights, title, and interests in 

a property to the United States, but the 

landowner retains those rights, title, and 

interests in the property which are 

specifically reserved to the landowner 

in the easement deed. 

Wetland reserve plan of operations 

(WRPO) means the document that is 

developed or approved by NRCS that 

identifies how the wetland functions 

and values and associated habitats on 

the easement will be restored, 

improved, and protected to achieve the 

purposes of the wetland reserve 

easement enrollment. 

Wetland functions and values means 

the hydrological and biological 

characteristics of wetlands and the 

socioeconomic value placed upon these 

characteristics, including: 

(1) Habitat for migratory birds and 

other wildlife, in particular at-risk 

species; 


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(2) Protection and improvement of 

water quality; 

(3) Attenuation of water flows due to 

flood; 

(4) The recharge of ground water; 

(5) Protection and enhancement of 

open space and aesthetic quality; 

(6) Protection of flora and fauna 

which contributes to the Nation’s 

natural heritage; 

(7) Carbon sequestration; and 

(8) Contribution to educational and 

scientific scholarship. 

Wetland restoration means the 

rehabilitation of degraded or lost habitat 

in a manner such that: 

(1) The original vegetation community 

and hydrology are, to the extent 

practical, re-established; or 

(2) A community different from what 

likely existed prior to degradation of the 

site is established. The hydrology and 

native self-sustaining vegetation being 

established will substantially replace 

original habitat functions and values 

and does not involve more than 30 

percent of the easement area. 

§ 1468.4 Appeals. 

(a) ACEP–ALE eligibility of entities. 

An entity which has submitted an 

ACEP–ALE application to be considered 

an eligible entity may obtain a review of 

any administrative determination 

concerning their eligibility for 

participation utilizing the 

administrative appeal regulations 

provided in 7 CFR parts 11 and 614. 

(b) ACEP–WRE applicants and 

participants. An applicant or participant 

in the ACEP–WRE may obtain a review 

of any administrative determination 

concerning eligibility for participation 

or receipt of payment utilizing the 

administrative appeal regulations 

provided in 7 CFR parts 11 and 614. 

(c) Easement administration 

determinations under ACEP after 

easement closing. NRCS determinations 

that are made pursuant to its rights in 

an ACEP-funded easement after closing 

may be appealed to the State 

Conservationist as specified in the 

notice provided to the landowner when 

NRCS exercises its rights under the 

easement. Such determinations are not 

subject to appeal under 7 CFR part 11. 

§ 1468.5 Scheme or device. 

(a) If it is determined by NRCS that 

anyone has employed a scheme or 

device to defeat the purposes of this 

part, any part of any program payment 

otherwise due or paid during the 

applicable period may be withheld or be 

required to be refunded with interest, 

thereon, as determined appropriate by 

NRCS. 

(b) A scheme or device includes, but 

is not limited to, coercion, fraud, 

misrepresentation, depriving anyone of 

a program benefit, or for the purpose of 

obtaining a payment to which they 

would otherwise not be entitled. 

§ 1468.6 Subordination, exchange, 

modification, and termination. 

(a) After an easement has been 

recorded, no subordination, exchange, 

modification, or termination will be 

made in any interest in land, or portion 

of such interest, except as approved by 

the NRCS. 

(b) NRCS may approve 

subordinations, exchanges, 

modifications, or terminations if NRCS 

determines that: 

(1) It is in the Federal Government’s 

interest to subordinate, exchange, 

modify, or terminate the interest in the 

land enrolled in the program; 

(2) The subordination, exchange, 

modification, or termination action will 

address a compelling public need or 

will facilitate the practical 

administration and management of the 

easement area or the program, as 

determined by the NRCS; 

(3) There is no practicable alternative 

that would address the compelling 

public need and avoid the easement 

area; 

(4)(i) The change will not adversely 

affect the conservation functions and 

values for which the easement was 

acquired or 

(ii) If there are no practicable 

alternative that exists other than impact 

to the conservation value of the 

easement area, such adverse impacts 

have been minimized to the greatest 

extent practicable, and any remaining 

adverse impacts mitigated by 

enrollment of other lands that provide 

equal or greater conservation functions 

and values, as determined by NRCS, at 

no cost to the government; 

(5) The easement subordination, 

modification, exchange, or termination 

under this section will not affect more 

than 10 percent of the original easement 

area. NRCS may authorize a greater 

percentage of the original easement area 

to be affected if NRCS determines that 

it is impracticable to achieve program 

purposes on the original easement area; 

and 

(6) The subordination, exchange, 

modification, or termination action will 

result in comparable conservation 

functions and value and equivalent or 

greater economic value to the United 

States as determined pursuant to 

paragraph (d) of this section. 

(c) NRCS must determine that the 

landowner and, if applicable, the 

eligible entity agree to such easement 

subordination, modification, exchange, 

or termination prior to considering that 

such easement administration action 

should be approved. 

(d) A determination of equal or greater 

economic value to the United States 

under paragraph (b) of this section will 

be made in accordance with an 

approved easement valuation 

methodology for ALE easements under 

subpart B or for WRE easements under 

subpart C. In addition to the value of the 

easement itself, NRCS may consider 

other financial investments it has made 

in the acquisition, restoration, and 

management of the original easement to 

ensure that the easement administration 

action results in equal or greater 

economic value to the United States. 

(e) Subordinations, exchanges, 

modifications, or terminations must 

result in equal or greater conservation 

and economic values to the United 

States. Subordinations, exchanges, or 

modifications of ACEP easements must 

result in no net loss of easement acres. 

(f) When reviewing a proposed action 

under this section, the preferred 

alternative is to avoid the easement area. 

If the easement area cannot be avoided 

entirely, then the preferred alternative 

should minimize impacts to the original 

easement area and its conservation 

functions and values. 

(g) Easement modifications, including 

subordinations, are preferred to 

easement exchanges which involve 

lands that are not physically adjacent to 

the original easement area. Easement 

exchanges are limited to circumstances 

where there are no available lands 

adjacent to the original easement area 

that will result in equal or greater 

conservation and economic values to 

the United States. 

(h) Replacement of easement acres as 

part of an easement exchange must 

occur within the same State and within 

the same eight-digit watershed as 

determined by the hydrologic unit codes 

developed by the U.S. Geological 

Survey. 

(i) Where NRCS determines that 

recordation of a new deed is necessary 

to effect an easement administration 

action under this section, NRCS will use 

the most recent version of the ACEP 

deed document or deed terms approved 

by NRCS. 

(j) If a modification, subordination or 

exchange involves an amended or new 

easement deed, the amended or new 

easement deed will be duly prepared 

and recorded in conformity with 

standard real estate practices, including 

requirements for title approval, 

subordination of liens, and recordation 

of documents. 

(k) At least 90 days prior to taking any 

termination action, written notice of 

such termination action will be 


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provided to the Committee on 

Agriculture of the House of 

Representatives and the Committee on 

Agriculture, Nutrition, and Forestry of 

the Senate. 

(l) A termination must meet criteria 

identified in this part and are limited to 

those circumstances where NRCS 

determines that the purposes of the 

program can no longer be achieved on 

the original easement area or the terms 

of the easement are no longer 

enforceable and there are no acceptable 

replacement acres available. NRCS will 

enter into a compensatory agreement 

with the proponent of the termination 

that identifies the costs for which the 

United States must be reimbursed, 

including but not limited to the value of 

the easement itself based upon current 

valuation methodologies, repayment of 

legal boundary survey costs, legal title 

work costs, associated easement 

purchase and restoration costs, and legal 

filing fees. 

(m) Easement plan. Insofar as is 

consistent with the easement and 

applicable law, NRCS may approve 

modifications to an easement plan that 

do not affect provisions of the easement. 

Easement plans include any agricultural 

land easement plans and component 

plans, wetland reserve plans of 

operations, or wetland reserve easement 

restoration agreements. Any easement 

plan modification must meet ACEP 

regulations and program objectives and 

must result in equal or greater 

conservation benefits on the enrolled 

land. 

§ 1468.7 Transfer of land. 

(a) Offers voided. Any transfer of the 

property prior to recording the easement 

in the applicable land records or 

executing the 30-year contract may void 

the availability of ACEP funding for that 

easement transaction, unless the new 

landowner is determined eligible, the 

transfer is approved by NRCS, and the 

new landowner is willing to comply 

with ACEP requirements. 

(b) Payments to participants. For 

wetland reserve easements with annual 

installment payments, any remaining 

easement payments will be made to the 

original participants unless NRCS 

receives an assignment of proceeds. 

(c) Claims to payments. With respect 

to any and all payments owed to 

participants, NRCS will bear no 

responsibility for any full payments or 

partial distributions of funds between 

the original participant and the 

participant’s successor. In the event of 

a dispute or claim on the distribution of 

payments, NRCS may withhold 

payments without the accrual of interest 

pending an agreement or adjudication 

on the rights to the funds. 

§ 1468.8 Payments not subject to claims. 

Any cost-share, contract, agreement, 

or easement payment or portion, 

thereof, due any person, legal entity, 

Indian Tribe, eligible entity, or other 

party under this part will be allowed 

without regard to any claim or lien in 

favor of any creditor, except agencies of 

the United States Government. 

§ 1468.9 Assignments. 

Any person, legal entity, Indian Tribe, 

eligible entity, or other party entitled to 

any cash payment under this program 

may assign the right to receive such 

cash payments, in whole or in part. 

§ 1468.10 Environmental markets. 

(a) Ecosystem services credits for 

conservation improvements under a 

wetland reserve easement. Landowners 

may obtain environmental credits under 

other programs but such action must not 

adversely affect the interests granted 

under the easement to the United States 

or be inconsistent with or defeat the 

conservation purpose for which the 

easement is acquired. 

(b) Ecosystem Services Credits Related 

to an Agricultural Land Easement: 

Landowners may obtain environmental 

credits under other programs but such 

action must not adversely affect the 

interests granted under the easement to 

the grantee or to the United States right 

of enforcement or be inconsistent with 

or defeat the conservation purpose for 

which the easement is acquired. 

Subpart B—Agricultural Land 

Easements 

§ 1468.20 Program requirements. 

(a) General. (1) Under ACEP–ALE, 

NRCS will facilitate and provide costshare assistance for the purchase by 

eligible entities of agricultural land 

easements or other interests in eligible 

private or Tribal land that is subject to 

a written pending offer from an eligible 

entity for the purpose of protecting the 

agricultural use, including grazing, and 

related conservation values of the land 

by limiting nonagricultural uses of the 

land. 

(2) To participate in ACEP–ALE, 

eligible entities as identified in 

paragraph (b) of this section must 

submit applications to NRCS State 

offices to partner with NRCS to acquire 

conservation easements on eligible land. 

Eligible entities with applications 

selected for funding must enter into a 

cooperative agreement with NRCS and 

use the NRCS required minimum deed 

terms specified therein, the effect of 

which is to protect natural resources 

and the agricultural nature of the land 

and permit the landowner the right to 

continue agricultural production and 

related uses subject to an agricultural 

land easement plan as approved by 

NRCS. 

(3) Under the agreement, the Federal 

share of the cost of an agricultural land 

easement or other interest in eligible 

land will not exceed 50 percent of the 

fair market value of the agricultural land 

easement and the eligible entity will 

provide a share that is at least 

equivalent to the Federal share, and at 

least 50 percent of the eligible entity 

share is from the eligible entity’s own 

cash resources unless otherwise 

specified in this part. 

(4) The duration of each agricultural 

land easement or other interest in land 

will be in perpetuity or the maximum 

duration permitted by State law. 

(b) Entity eligibility. (1) To be eligible 

to receive ACEP–ALE funding, an 

Indian Tribe, State, unit of local 

government, or a nongovernmental 

organization must meet the definition of 

eligible entity as listed in § 1468.3. In 

addition, eligible entities interested in 

receiving ACEP–ALE funds must 

provide NRCS sufficient evidence of: 

(i) A commitment to long-term 

conservation of agricultural lands, 

(ii) A capability to acquire, manage, 

and enforce easements, 

(iii) Sufficient number of staff 

dedicated to monitoring and easement 

stewardship, and 

(iv) The availability of funds at the 

time of application sufficient to meet 

the eligible entity’s contribution 

requirements for each parcel proposed 

for funding. 

(2) All entities identified on the 

application or agreement must: 

(i) Ensure that their records and the 

records of all landowners with parcels 

selected for funding have been 

established in the USDA customer 

records system and are responsible for 

ensuring that USDA has all the 

documentation needed to establish 

these records, and 

(ii) Comply with applicable 

registration and reporting requirements 

of the Federal Funding Accountability 

and Transparency Act of 2006 (Pub. L. 

109–282, as amended), and 2 CFR parts 

25 and 170, and maintain such 

registration for the duration of the 

cooperative agreement. 

(c) Landowner eligibility. Under 

ACEP–ALE, the parcel landowners 

must: 

(1) Be in compliance with the highly 

erodible land and wetland conservation 

provisions in 7 CFR part 12. Persons or 

legal entities must be in compliance 

with the Adjusted Gross Income 


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Limitation provisions of 7 CFR part 

1400; 

(2) Agree to provide access to the 

property and such information to NRCS 

as the agency deems necessary or 

desirable to assist in its determination of 

eligibility for program implementation 

purposes; and 

(3) Have their records established in 

the USDA customer records system. 

(d) Land eligibility. (1) Land will only 

be considered eligible for enrollment in 

ACEP–ALE based on NRCS 

determination that such land: 

(i) Is private or Tribal land on a farm 

or ranch subject to a written pending 

offer by an eligible entity, 

(ii) Contains at least 50 percent prime 

or unique farmland, or designated farm 

and ranch land of State or local 

importance unless otherwise 

determined by NRCS, contains 

historical or archaeological resources, 

the enrollment of which would protect 

grazing uses and related conservation 

values by restoring and conserving land, 

or furthers a State or local policy 

consistent with the purposes of the 

ACEP–ALE, 

(iii) Is cropland; rangeland; grassland 

or land that contains forbs or shrubland 

for which grazing is the predominant 

use; located in an area that has been 

historically dominated by grassland, 

forbs, or shrubs and could provide 

habitat for animal or plant populations 

of significant ecological value; 

pastureland; or nonindustrial private 

forest land that contributes to the 

economic viability of a parcel offered for 

enrollment or serves as a buffer to 

protect such land from development, 

and 

(iv) Possesses suitable onsite and 

offsite conditions which will allow the 

easement to be effective in achieving the 

purposes of the program. 

(2) If land offered for enrollment is 

determined eligible under paragraph 

(d)(1) of this section, then NRCS may 

also enroll land that is incidental to the 

eligible land if the incidental land is 

determined by NRCS to be necessary for 

the efficient administration of an 

agricultural land easement. 

(3) Eligible land, including eligible 

incidental land, may not include forest 

land of greater than two-thirds of the 

easement area unless waived by NRCS 

with respect to lands identified by 

NRCS as sugar bush that contributes to 

the economic viability of the parcel. 

Land with contiguous forest that 

exceeds the greater of 40 acres or 20 

percent of the easement area will have 

a forest management plan before the 

easement is purchased and 

compensation paid to the landowner 

unless NRCS has approved an 

alternative means by which the forest 

land’s contribution to the economic 

viability of the land has been 

demonstrated. 

(e) Ineligible land. The following land 

is not eligible for enrollment in ACEP– 

ALE: 

(1) Lands owned by an agency of the 

United States, other than land held in 

trust for Indian Tribes; 

(2) Lands owned in fee title by a State, 

including an agency or a subdivision of 

a State, or unit of local government; 

(3) Land owned by a 

nongovernmental organization whose 

purpose is to protect agricultural use 

and related conservation values 

including those listed in the statute 

under eligible land; 

(4) Land subject to an easement or 

deed restriction which, as determined 

by NRCS, provides similar restoration 

and protection as would be provided by 

enrollment in the program; 

(5) Land where the purposes of the 

program would be undermined due to 

onsite or offsite conditions, such as risk 

of hazardous substances, proposed or 

existing rights of way, infrastructure 

development, or adjacent land uses; 

(6) Land which NRCS determines to 

have unacceptable exceptions to clear 

title or insufficient legal access; or 

(7) Land on which gas, oil, earth, or 

mineral rights exploration has been 

leased or is owned by someone other 

than the landowner is ineligible under 

ACEP–ALE unless it is determined by 

NRCS that the third party rights will not 

harm or interfere with the conservation 

values or agricultural uses of the 

easement, that any methods of 

exploration and extraction will have 

only a limited and localized impact on 

the easement, and the limitations are 

specified in the ALE deed. 

§ 1468.21 Application procedures. 

(a) To apply for enrollment under a 

new agreement or if applicable, under 

an existing agreement in a subsequent 

fiscal year, an eligible entity must 

submit an entity application for an 

ACEP–ALE agreement and any 

associated individual parcel 

applications to NRCS in the State where 

parcels are located. 

(b) Applications may be submitted on 

a continuous basis or in response to 

specific program solicitations. NRCS 

may announce one or more application 

cut-off dates for funding consideration 

within a given fiscal year. 

(c) NRCS will determine the entity, 

land, and landowner eligibility based on 

the application materials provided by 

the eligible entity, onsite assessments, 

and the criteria set forth in § 1468.20. 

(d) At the end of each fiscal year, the 

lists of pending, unfunded eligible 

parcels will be cancelled unless the 

eligible entity requests that specific 

parcels be considered for funding in the 

next fiscal year and provides updated 

application information to NRCS. 

§ 1468.22 Establishing priorities, ranking 

considerations and project selection. 

(a) After NRCS determines the 

eligibility of the landowner and the 

land, it can score and rank the parcels 

for funding. NRCS will use national and 

State criteria to score and rank eligible 

parcels. The national ranking criteria 

will comprise at least half of the ranking 

score. The State criteria will be 

developed by NRCS on a State-by-State 

basis, with advice from the State 

Technical Committee. Eligible parcels 

are ranked at the State level. 

(b) The national ranking criteria are: 

(1) Percent of prime, unique, and 

other important farmland in the parcel 

to be protected; 

(2) Percent of cropland, rangeland, 

grassland, historic grassland, 

pastureland, or nonindustrial private 

forest land in the parcel to be protected; 

(3) Ratio of the total acres of land in 

the parcel to be protected to average 

farm size in the county according to the 

most recent USDA Census of 

Agriculture; 

(4) Decrease in the percentage of 

acreage of farm and ranch land in the 

county in which the parcel is located 

between the last two USDA Censuses of 

Agriculture; 

(5) Percent population growth in the 

county as documented by the United 

States Census; 

(6) Population density (population per 

square mile) as documented by the most 

recent United States Census; 

(7) Existence of a farm or ranch 

succession plan or similar plan 

established to address farm viability for 

future generations; 

(8) Proximity of the parcel to other 

protected land, such as military 

installations; land owned in fee title by 

the United States or an Indian Tribe, 

State or local government, or by a 

nongovernmental organization whose 

purpose is to protect agricultural use 

and related conservation values; or land 

that is already subject to an easement or 

deed restriction that limits the 

conversion of the land to 

nonagricultural use; 

(9) Proximity of the parcel to other 

agricultural operations and agricultural 

infrastructure; 

(10) Maximizing the protection of 

contiguous acres devoted to agricultural 

use; 

(11) Whether the land is currently 

enrolled in CRP in a contract that is set 


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11056 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

to expire within one year and is 

grassland that would benefit from 

protection under a long-term easement; 

and 

(12) Other additional criteria as 

determined by NRCS. 

(c) State or local criteria as 

determined by NRCS, with advice of the 

State Technical Committee, may only 

include: 

(1) The location of a parcel in an area 

zoned for agricultural use; 

(2) The eligible entity’s performance 

in managing and enforcing easements. 

Performance must be measured by the 

efficiency by which easement 

transactions are completed or 

percentage of parcels that have been 

monitored and the percentage of 

monitoring results that have been 

reported; 

(3) Multifunctional benefits of farm 

and ranch land protection including 

social, economic, historical and 

archaeological, environmental benefits, 

species protection, or climate change 

resiliency; 

(4) Geographic regions where the 

enrollment of particular lands may help 

achieve national, State, and regional 

conservation goals and objectives, or 

enhance existing government or private 

conservation projects; 

(5) Diversity of natural resources to be 

protected; 

(6) Score in the land evaluation and 

site assessment system or equivalent 

measure for grassland enrollments. This 

score serves as a measure of agricultural 

viability (access to markets and 

infrastructure); and 

(7) Other criteria determined by NRCS 

that will allow for the selection of 

parcels that will achieve ACEP–ALE 

purposes. 

(d) If NRCS determines that the 

purchase of two or more agricultural 

land easements are comparable in 

achieving program goals, NRCS will not 

assign a higher priority to any one of 

these agricultural land easements solely 

on the basis of lesser cost to the 

program. 

(e) NRCS will rank all eligible parcels 

that have been submitted prior to an 

application cut-off date in accordance 

with the national and State ranking 

criteria before selecting parcels for 

inclusion in a cooperative agreement. 

(f) NRCS will list the selected eligible 

parcels in the cooperative agreements 

with the eligible entities that submitted 

the parcels, and the cooperative 

agreements will be signed by NRCS and 

eligible entities. 

(g) If the terms of the cooperative 

agreement allow for amendments in a 

subsequent fiscal year, the subsequent 

fiscal year’s selected eligible parcels 

will be identified on an amendment to 

the cooperative agreement for that fiscal 

year. Funds for each subsequent fiscal 

year’s parcels will be obligated with 

new NRCS and eligible entity signatures 

on each fiscal year’s amendment. 

Parcels funded on each fiscal year’s 

amendment will have a separate 

deadline for easement purchase, 

requesting reimbursement, and funding 

expiration. 

§ 1468.23 Cooperative agreements. 

(a) NRCS will enter into a cooperative 

agreement with selected eligible entities 

that stipulates the terms and conditions 

under which the eligible entity is 

permitted to use ACEP–ALE funding, 

and will incorporate all ACEP–ALE 

requirements. NRCS will make a 

cooperative agreement template 

available to the eligible entities. The 

cooperative agreement will address: 

(1) The interests in land to be 

acquired, including the United States’ 

right of enforcement, the minimum deed 

requirements, as well as the form and 

other terms and conditions of the 

easement deed; 

(2) The management and enforcement 

of the rights on lands acquired with 

ACEP–ALE funds; 

(3) The responsibilities of NRCS; 

(4) The responsibilities of the eligible 

entity on lands acquired with ACEP– 

ALE funds; 

(5) The requirement for each easement 

to have an agricultural land easement 

plan that is approved by NRCS and 

signed by the landowner and the 

eligible entity prior to execution of the 

easement deed and payment of 

easement compensation to the 

landowner; 

(6) The allowance of eligible parcel 

substitution upon mutual agreement of 

the parties; 

(7) The certification by the landowner 

at the time of easement execution and 

payment of easement compensation of 

the extent of any charitable contribution 

the landowner has provided to eligible 

entity; and 

(8) Other requirements deemed 

necessary by NRCS to meet the purposes 

of this part or protect the interests of the 

United States. 

(b) The term of cooperative 

agreements will be up to 5 fiscal years 

following the fiscal year the agreement 

is signed for certified entities and up to 

3 fiscal years following the fiscal year 

the agreement is signed for other eligible 

entities. 

(c) The cooperative agreement will 

include an attachment listing the 

eligible parcels accepted by the NRCS. 

This list will include landowners’ 

names and addresses, acreage, the 

estimated fair market value, the 

estimated Federal contribution, and 

other relevant information. 

(d) The cooperative agreement will 

require the eligible entity to comply 

with applicable registration and 

reporting requirements of the Federal 

Funding Accountability and 

Transparency Act of 2006 (Pub. L. 109– 

282, as amended) and 2 CFR parts 25 

and 170. 

(e) With NRCS approval, the eligible 

entity may substitute acres within a 

pending easement offer. Substituted 

acres must not decrease the monetary 

value of the offered easement or reduce 

the easements capability in meeting 

program purposes. With NRCS 

approval, an eligible entity may 

substitute pending easement offers 

within their cooperative agreement. The 

substituted landowner and easement 

offer must meet eligibility criteria as 

described in § 1468.20. NRCS may 

require re-ranking of substituted acres 

within an easement offer and 

substituted easement offers within a 

cooperative agreement. 

§ 1468.24 Compensation and funding for 

agricultural land easements. 

(a) Determining the fair market value 

of the agricultural land easement. (1) 

The Federal share will not exceed 50 

percent of the fair market value of the 

agricultural land easement, as 

determined using: 

(i) An appraisal using the Uniform 

Standards of Professional Appraisal 

Practices or the Uniform Appraisal 

Standards for Federal Land 

Acquisitions, 

(ii) An areawide market analysis or 

survey, or 

(iii) Another industry-approved 

method approved by NRCS. 

(2) Prior to receiving funds for an 

agricultural land easement, the eligible 

entity must provide NRCS with an 

acceptable determination of the fair 

market value of the agricultural land 

easements that conforms to applicable 

industry standards and NRCS 

specifications and meets the 

requirements of this part. 

(3) If the value of the easement is 

determined using an appraisal, the 

appraisal must be completed and signed 

by a State-certified general appraiser 

and must contain a disclosure statement 

by the appraiser. The appraisal must 

conform to the Uniform Standards of 

Professional Appraisal Practices or the 

Uniform Appraisal Standards for 

Federal Land Acquisitions as selected 

by the eligible entity. 

(4) If the fair market value of the 

easement is determined using an 

areawide market analysis or survey, the 


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areawide market analysis or survey 

must be completed and signed by a 

person determined by NRCS to have 

professional expertise and knowledge of 

agricultural land values in the area 

subject to the areawide market analysis 

or survey. The use of areawide market 

analysis or survey must be approved by 

NRCS prior to entering a cooperative 

agreement. 

(5) Requests to use another industryapproved method must be submitted to 

NRCS and approved by NRCS prior to 

entering into the cooperative agreement. 

NRCS will identify the applicable 

industry standards and any associated 

NRCS specifications based on the 

methodology approved. 

(6) NRCS will review for quality 

assurance purposes, appraisals, 

areawide market analysis or surveys, 

valuation reports, or other information 

resulting from another industryapproved method approved for use by 

NRCS. Eligible entities must provide a 

copy of the applicable report or other 

information used to establish the fair 

market value of the agricultural land 

easement to NRCS at least 90 days prior 

to the planned date of easement 

execution and payment of easement 

compensation to the landowner. 

(7) Prior to the eligible entity’s 

purchase of the easement, including 

payment of easement compensation to 

the landowner, NRCS must approve the 

determination of the fair market value of 

the agricultural land easement upon 

which the Federal share will be 

determined. 

(8) The landowner may make a 

charitable donation for a qualified 

conservation contribution (as defined by 

Section 170(h) of the Internal Revenue 

Code of 1986) to the eligible entity as 

provided in paragraph (b) of this 

section. 

(b) Determining the Federal share of 

the agricultural land easement. (1) 

Subject to the statutory limits, NRCS 

may provide up to 50 percent of the fair 

market value of the agricultural land 

easement. An eligible entity will share 

in the cost of purchasing an agricultural 

land easement in an amount that is at 

least equivalent to the Federal share. 

(2) An eligible entity may include as 

part of its share a charitable donation or 

qualified conservation contribution (as 

defined by section 170(h) of the Internal 

Revenue Code of 1986) from the 

landowner if the eligible entity 

contributes its own cash resources in an 

amount that is at least 50 percent of the 

amount of the Federal share. 

(3) NRCS may authorize a waiver to 

increase the Federal share of the cost an 

agricultural land easement to an amount 

not to exceed 75 percent of the fair 

market value of the agricultural land 

easement if: 

(i) NRCS determines the lands to be 

enrolled are grasslands of special 

environmental significance as defined 

in this part, 

(ii) An eligible entity will share in the 

cost of purchasing an agricultural land 

easement in an amount that is no less 

than 33.33 percent of the Federal share. 

The eligible entity share may include a 

qualified landowner contribution if the 

eligible entity contributes its own cash 

resources in an amount that is at least 

16.67 percent of the Federal share, and 

(iii) The eligible entity agrees to 

incorporate and enforce the additional 

necessary deed restrictions to manage 

and enforce the easement to ensure the 

grasslands of special environmental 

significance attributes are protected. 

(4) NRCS may waive a portion of the 

applicable eligible entity cash 

contribution requirement for 

enrollments that NRCS determines are 

of projects of special significance, 

including ALE enrollments that have 

received a waiver as grasslands of 

special environmental significance 

waiver. The waiver of the entity cash 

contribution does not result in an 

increase in the applicable Federal share 

and may only be authorized if NRCS 

determines the parcel is a project of 

special significance and NRCS 

determines that— 

(i) The transaction is subject to an 

increase in the private landowner 

donation that is equal to the amount of 

the waiver, 

(ii) The increase in the landowner 

donation is voluntary, 

(iii) The property is in active 

agricultural production, 

(iv) The agricultural land easement 

plan will address the protection of the 

attributes resulting in the parcel being a 

project of special significance, and 

(v) The eligible entity contributes its 

own cash resources in an amount that 

is: 

(A) For projects of special significance 

that are not grasslands of special 

environmental significance, at least 25 

percent of the amount of the Federal 

share, or at least 10 percent of the 

Federal share in States that offer a State 

tax credit for a qualified conservation 

contribution on agricultural land; and 

(B) For enrollment on lands that has 

received a grasslands of special 

environmental significance waiver, at 

least 8.33 percent of the amount of the 

Federal share, or at least 3.33 percent of 

the Federal share in States that offer a 

State tax credit for a qualified 

conservation contribution on 

agricultural land. 

(vi) The parcel must meet definition 

of project of special significance and 

meet one or more of the following 

national criteria. The parcel is: 

(A) Listed on the National Register of 

Historic Places or is a traditional 

cultural property; 

(B) Located within a micropolitan 

statistical area and 50 percent of the 

adjacent land is agricultural land; 

(C) Located within a metropolitan 

statistical area; 

(D) An education or demonstration 

farm or ranch focused on agricultural 

production and natural resource 

conservation; 

(E) A farm or ranch operated for the 

purpose of increasing participation in 

agriculture and natural resource 

conservation by underserved 

communities, veterans, beginning 

farmers or ranchers, or disabled farmers 

or ranchers; 

(F) Officially designated as having 

been in the same family ownership for 

over 100 years; or 

(G) Meets the definition of grasslands 

of special environmental significance. 

(c) Uses of NRCS ACEP–ALE funds. 

(1) ACEP–ALE funds may not be used 

for eligible entity expenditures for 

appraisals, areawide market analysis, 

legal surveys, access, title clearance or 

title insurance, legal fees, development 

of agricultural land easement plans or 

component plans by the eligible entity, 

costs of easement monitoring, and other 

related administrative and transaction 

costs incurred by the eligible entity. 

(2) NRCS will conduct its own 

technical and administrative review of 

appraisals, areawide market analysis, or 

other easement valuation reports and its 

hazardous materials reviews. 

(3) NRCS may provide technical 

assistance to develop an agricultural 

land easement plan or component plans 

or may provide ACEP–ALE funds to 

technical service providers (TSP) under 

7 CFR part 652 to develop the 

agricultural land easement plan or 

component easement plans. 

§ 1468.25 Agricultural land easement 

deeds. 

(a) Under ACEP–ALE, a landowner 

grants an easement to an eligible entity 

with which NRCS has entered into an 

ACEP–ALE cooperative agreement. The 

easement deed will require that the 

easement area be maintained in 

accordance with ACEP–ALE goals and 

objectives for the term of the easement. 

(b) Written pending offers by an 

eligible entity must be for acquiring an 

easement in perpetuity, except where 

State law prohibits a permanent 

easement. In such cases where State law 

limits the term of a conservation 


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easement, the easement term will be for 

the maximum duration allowed under 

State law. 

(c) The eligible entity may use its own 

terms and conditions in the agricultural 

land easement deed, but the agricultural 

land easement deed must contain the 

minimum deed requirements as 

specified by NRCS in the cooperative 

agreement, either in the deed or through 

an addendum that is incorporated 

therein. 

(d) For eligible entities that have not 

been certified, the deed document must 

be reviewed and approved by NRCS in 

advance of use as provided herein: 

(1) The eligible entity must submit 

individual agricultural land easement 

deeds to NRCS at least 90 days before 

the planned easement purchase date 

and be approved by NRCS in advance of 

use. 

(2) Eligible entities with multiple 

eligible parcels in a cooperative 

agreement may submit an agricultural 

land easement deed template for review 

and approval. The deed templates must 

be reviewed and approved by NRCS in 

advance of use. 

(3) NRCS may conduct an additional 

review of the agricultural land easement 

deeds for individual parcels prior to the 

execution of the easement deed by the 

landowner and the eligible entity to 

ensure that they contain the same 

language as approved by National 

Headquarters and that the appropriate 

site-specific information has been 

included. 

(e) NRCS reserves the right to require 

additional specific language or require 

removal of language in the agricultural 

land easement deed to ensure the 

enforceability of the easement deed, 

protect the interests of the United 

States, or to otherwise ensure ALE 

purposes will be met. 

(f) Among the minimum deed 

requirements specified in the 

cooperative agreement, the deed must: 

(1) Include a right of enforcement 

clause for NRCS. NRCS will specify the 

terms for the right of enforcement 

clause, including that such interest in 

the agricultural land easement remains 

in effect for the duration of the easement 

and any changes that affect NRCS’s 

interest in the agricultural land 

easement must be reviewed and 

approved by NRCS under § 1468.6 of 

this part. 

(2) Ensure compliance with an 

agricultural land easement plan that is 

provided by the eligible entity in 

consultation with the landowner, 

approved by NRCS, and implemented 

according to NRCS requirements. NRCS 

may provide technical assistance for the 

development or implementation of the 

agricultural land easement plan. If the 

parcel contains highly erodible land, the 

conservation plan component of the 

agricultural land easement plan will be 

developed and managed in accordance 

with the Food Security Act of 1985 and 

its associated regulations. The access 

must be sufficient to provide the United 

States ingress and egress to the 

easement area to ensure compliance 

pursuant to its right of enforcement. 

(3) Specify that impervious surfaces 

will not exceed 2 percent of the ACEP– 

ALE easement area, excluding NRCSapproved conservation practices unless 

NRCS grants a waiver as follows: 

(i) The eligible entity may request a 

waiver of the 2 percent impervious 

surface limitation at the time that a 

parcel is approved for funding, 

(ii) NRCS may waive the 2 percent 

impervious surface limitation on an 

individual easement basis, provided 

that no more than 10 percent of the 

easement area is covered by impervious 

surfaces, 

(iii) Before waiving the 2 percent 

limitation, NRCS will consider, at a 

minimum, population density; the ratio 

of open, prime, and other important 

farmland versus impervious surfaces on 

the easement area; the impact to water 

quality concerns in the area; the type of 

agricultural operation; parcel size; and 

the purposes for which the easement 

was acquired, 

(iv) Eligible entities may submit an 

impervious surface limitation waiver 

process to NRCS for review and 

consideration. The eligible entities must 

apply any approved impervious surface 

limitation waiver processes on an 

individual easement basis, and 

(v) NRCS will not approve blanket 

waivers or entity blanket waiver 

processes of the impervious surface 

limitation. All ACEP–ALE easements 

must include language limiting the 

amount of impervious surfaces within 

the easement area. 

(4) Include an indemnification clause 

requiring the landowner to indemnify 

and hold harmless the United States 

from any liability arising from or related 

to the property enrolled in ACEP–ALE. 

This provision cannot be waived. 

(5) Include an amendment clause 

requiring that any changes to the 

easement deed after its recordation must 

be consistent with the purposes of the 

agricultural land easement and this part. 

Any substantive amendment, including 

any subordination of the terms of the 

easement or modifications, exchanges, 

or terminations of the easement area, 

must be approved by NRCS prior to 

recordation or else the action is null and 

void. 

(6) Prohibit commercial and industrial 

activities except those activities that 

NRCS has determined are consistent 

with the agricultural use of the land. 

(7) Prohibit the subdivision of the 

property subject to the agricultural land 

easement, except where state or local 

regulations explicitly require 

subdivision to construct residences for 

employees working on the property or 

where otherwise authorized by NRCS. 

(8) Include specific protections 

related to the purposes for which the 

agricultural land easement is being 

purchased, including provisions to 

protect historic or archaeological 

resources or grasslands of special 

environmental significance. 

(9) Other minimum deed terms 

specified by NRCS to ensure that ACEP– 

ALE purposes are met. 

(g) NRCS will make available for an 

eligible entity’s use a standard set of 

minimum deed terms that could be 

wholly incorporated along with the 

eligible entity’s own deed terms into the 

agricultural land easement deed, or as 

an addendum that is attached and 

incorporated by reference into the deed. 

If an eligible entity agrees to use the 

standard set of minimum deed terms, 

NRCS and the eligible entity will 

identify in the cooperative agreement 

those minimum standard deed terms as 

a requirement and the review of 

individual deeds may not be required. 

The minimum standard deed terms will 

specify that if such terms conflict with 

other terms of the deed, the NRCS terms 

superseded and prevail. NRCS may 

place priority on applications where an 

eligible entity agrees to use the standard 

set of minimum deed terms. 

(h) The eligible entity will acquire, 

hold, manage, monitor, and enforce the 

easement. The eligible entity may have 

the option to enter into an agreement 

with a governmental or private 

organizations that have no property 

rights or interests in the easement area 

to carry out easement monitoring, 

management and enforcement 

responsibilities. 

(i) All agricultural land easement 

deeds acquired with ACEP–ALE funds 

must be recorded. The eligible entity 

will provide proof of recordation to 

NRCS within the timeframe specified in 

the cooperative agreement. 

§ 1468.26 Agricultural land easement plan. 

(a) The terms of the agricultural land 

easement deed will permit the 

landowner the right to continue 

agricultural production and related uses 

subject to an agricultural land easement 

plan, approved by NRCS and the 

landowner. An agricultural land 


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easement plan is required on all ACEP– 

ALE easements and at a minimum must: 

(1) Describe the activities which 

promote the long-term viability of the 

land to meet the purposes for which the 

easement was acquired; 

(2) Identify required and 

recommended conservation practices 

that address the purposes and resource 

concerns for which the parcel was 

selected; 

(3) Identify additional or specific 

criteria associated with permissible and 

prohibited activities consistent with the 

terms of the deed; and 

(4) If the agricultural land easement 

contains certain land use types, a 

component plan must be incorporated 

by reference into the agricultural land 

easement plan for each land use type 

present on the easement as follows: 

(i) Grasslands must have a grasslands 

management plan as defined in this part 

which includes a description of the 

grazing management system consistent 

with NRCS prescribed grazing 

standards, 

(ii) Forest land as described in 

§ 1468.20(d)(3) must have a forest 

management plan, and 

(iii) Highly erodible land must have a 

conservation plan wherein NRCS may 

require the conversion to less intensive 

uses. The terms of the conservation plan 

must be developed and managed in 

compliance with the Food Security Act 

of 1985 and its associated regulations. 

(5) The eligible entity is responsible to 

obtain and provide the agricultural land 

easement plan to NRCS. The 

agricultural land easement plan may be 

developed by NRCS, a qualified TSP, or 

an NRCS-certified conservation planner 

with current certifications. 

(6) Prior to the execution of the 

easement by the eligible entity and the 

landowner and payment of easement 

compensation to the landowner, the 

agricultural land easement plan must be 

approved by NRCS and be signed by the 

landowner and the eligible entity. The 

eligible entity is primarily responsible 

to ensure compliance with any required 

provisions of the agricultural land 

easement plan. 

(b) [Reserved]. 

§ 1468.27 Eligible entity certification. 

(a) To be considered for certification, 

an entity must submit a written request 

for certification to NRCS, which 

specifically addresses the following 

items: 

(1) An explanation of how the entity 

meets the requirements identified in 

§ 1468.20(d) of this section; 

(2) An agreement to use for ACEP– 

ALE funded acquisitions easement 

valuation methodologies identified in 

section § 1468.24 of this part; 

(3) Proof that the entity holds, 

manages, and monitors a minimum of 

25 agricultural land conservation 

easements, unless the entity requests 

and receives a waiver of this 

requirement from NRCS; 

(4) Proof that the entity holds, 

manages, and monitors a minimum of 

five ACEP–ALE, FRPP, or Farmland 

Protection Program conservation 

easements; 

(5) A showing of a demonstrated 

ability to complete acquisition of 

easements in a timely fashion; 

(6) A showing that it has the capacity 

to enforce the provisions of easement 

deeds and history of such enforcement; 

(7) For nongovernmental 

organizations, information that the 

entity possesses a dedicated fund for the 

purposes of easement management, 

monitoring, and enforcement where 

such fund is sufficiently capitalized. 

The fund must be dedicated to the 

purposes of managing, monitoring, and 

enforcing each easement held by the 

eligible entity; and 

(8) A plan for administering 

easements enrolled under this part, as 

determined by NRCS. 

(b) NRCS will notify an entity in 

writing whether they have been certified 

and the rationale for the agency’s 

decision. When NRCS determines an 

entity qualifies as certified: 

(1) NRCS may enter into a cooperative 

agreement with the certified entity 

through which NRCS may obligate 

funding for up to 5 fiscal years. New 

parcels or prior-year unfunded parcels 

submitted for funding by certified 

entities must compete for funding each 

year. Selected parcels and funding will 

be added to the existing cooperative 

agreement using an amendment to the 

cooperative agreement. Amendments 

added in the last year of the agreement 

cannot be extended; 

(2) NRCS will accept applications 

from certified entities continuously 

throughout the fiscal year; 

(3) The terms of the cooperative 

agreement will include the minimum 

deed terms and conditions to ensure 

that ACEP–ALE purposes will be met by 

the certified entity without requiring 

NRCS to pre-approve each easement 

transaction prior to closing. 

(i) Certified entities may purchase 

easements without NRCS approving the 

agricultural land easement deeds, 

agricultural land easement plans, titles, 

or appraisals before the purchase of the 

easement; 

(ii) Certified entities will prepare the 

agricultural land easement deeds, 

agricultural land easement plans, titles, 

and appraisals in accordance with 

NRCS requirements as identified in the 

cooperative agreement; 

(4) NRCS may provide technical 

assistance to develop the agricultural 

land easement plan. 

(5) NRCS will conduct quality 

assurance reviews of a percentage of the 

agricultural land easement transactions 

submitted by the certified entity for 

payment and annual monitoring reports 

submitted by the certified entity. The 

review will include whether the deed, 

title review, agricultural land easement 

plan, easement valuation 

determinations, and subsequent 

monitoring were conducted in 

accordance with the requirements set 

forth by NRCS in its certification of the 

eligible entity or in the cooperative 

agreement entered into with the 

certified entity; and 

(6) If an agricultural land easement 

deed, agricultural land easement plan, 

title, appraisal, or other easement 

valuation determination, or monitoring 

report fails the NRCS quality assurance 

review, NRCS will provide the certified 

entity an opportunity to correct the 

errors. If the certified entity fails to 

correct the errors to NRCS’ satisfaction, 

NRCS will consider whether to allow 

the certified entity to continue to 

purchase ALE-funded easements 

without prior NRCS approval, to 

decertify the entity in accordance with 

paragraph (c) of this section, or require 

the certified entity to take 

administrative steps necessary to 

remedy the deficiencies. 

(c) Review and decertification of the 

certified entity. (1) NRCS will conduct a 

review of the certified entity a minimum 

of once every 3 years to ensure that the 

certified entities are meeting the 

certification criteria established in this 

section. 

(2) If NRCS determines that the 

certified entity no longer meets these 

criteria, the Chief will: 

(i) Provide the certified entity a 

specified period of time, at a minimum 

180 days, in which to take such actions 

as may be necessary to correct the 

identified deficiencies, and 

(ii) If NRCS determines the certified 

entity does not meet the criteria 

established in this part after the 180 

days, NRCS will send written notice of 

decertification of the entity’s 

certification status or eligibility for 

future ACEP–ALE funding. This notice 

will specify the actions that have not 

been completed to retain certification 

status, the actions entity must take to 

request certification status, the status of 

funds in the cooperative agreement; and 

the eligibility of the entity to apply for 

future ACEP–ALE funds. The entity may 

contest the Notice of Decertification in 


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writing to NRCS within 20 calendar 

days of receipt of the notice of 

decertification. The entity’s letter must 

provide specific reasons why the 

decision to decertify is in error. 

(3) The period of decertification may 

not exceed 3 years in duration, with 

duration of decertification based upon 

the seriousness of the facts; and 

(4) The entity may be recertified upon 

application to NRCS, after the 

decertification period has expired, and 

when the entity has met the 

requirements as outlined under 

§ 1468.20(d). 

§ 1468.28 Violations and remedies. 

(a) In the event of a violation of the 

agricultural land easement terms, the 

eligible entity will notify the landowner 

and the violator, if different than the 

landowner, and NRCS. The landowner 

may be given reasonable notice and, 

where appropriate, an opportunity to 

voluntarily correct the violation in 

accordance with the terms of the 

agricultural land easement. 

(b) In the event that the eligible entity 

fails to enforce any of the terms of the 

agricultural land easement as 

determined by NRCS, NRCS may 

exercise the United States’ rights to 

enforce the terms of the agricultural 

land easement through any and all 

authorities available under Federal or 

State law. 

(c) Notwithstanding paragraph (a) of 

this section, NRCS, upon notification to 

the landowner and the eligible entity, 

reserves the right to enter upon the 

easement area if the annual monitoring 

report provided by the eligible entity 

documenting compliance with the 

agricultural land easement and the 

agricultural land easement plan is 

insufficient or is not provided annually, 

the United States has evidence of an 

unaddressed violation, or to remedy 

deficiencies or easement violations as it 

relates to the agricultural land easement 

plan. In the event of an emergency, the 

entry may be made at the discretion of 

NRCS when the actions are deemed 

necessary to prevent, terminate or 

mitigate a potential or unaddressed 

violation with notification to the 

landowner and eligible entity provided 

at the earliest practicable time. The 

landowner will be liable for any costs 

incurred by NRCS as a result of the 

landowner’s failure to comply with the 

easement requirements as it relates to 

agricultural land easement violations. 

(d) The United States will be entitled 

to recover any and all costs from the 

eligible entity, including attorney’s fees 

or expenses, associated with any 

enforcement or remedial action as it 

relates to the enforcement of the ACEP– 

ALE easement. 

(e) In instances where an easement is 

terminated, the proponent of the 

termination action shall pay to CCC an 

amount determined by NRCS. 

(f) If NRCS exercises its rights 

identified under an agricultural land 

easement NRCS will provide written 

notice to the eligible entity at the 

eligible entity’s last known address. The 

notice will set forth the nature of the 

noncompliance by the eligible entity 

and a 60-day period to cure. If the 

eligible entity fails to cure within the 

60-day period, NRCS will take the 

action specified under the notice. NRCS 

reserves the right to decline to provide 

a period to cure if NRCS determines that 

imminent harm may result to the 

conservation values or other interest in 

land it seeks to protect. 

Subpart C—Wetland Reserve 

Easements 

§ 1468.30 Program requirements. 

(a) General. (1) Under the ACEP– 

WRE, NRCS may purchase wetland 

reserve easements from with eligible 

landowners who voluntarily cooperate 

to restore, protect, and enhance 

wetlands on eligible private or Tribal 

lands. A 30-year contract enrollment 

option is also available for acreage 

owned by Indian Tribes. 

(2) To participate in ACEP–WRE, a 

landowner must agree to the 

implementation of a WRPO, the effect of 

which is to restore, protect, enhance, 

maintain, and manage the hydrologic 

conditions of inundation or saturation 

of the soil, native vegetation, and 

natural topography of eligible lands. 

(3) NRCS may provide financial 

assistance through an easement 

restoration agreement for the 

conservation practices and activities 

that promote the restoration, protection, 

enhancement, maintenance, and 

management of wetland functions and 

values and associated habitats. 

(4) For ACEP–WRE enrollments, 

NRCS may implement such 

conservation practices and activities 

through an agreement with the 

landowner, a contract with a vendor, an 

interagency agreement, or a cooperative 

agreement with a cooperating entity. 

Specific restoration, protection, 

enhancement, maintenance, and 

management actions may be undertaken 

by the landowner, NRCS or its designee. 

(5) The duration of a wetland reserve 

easement may be either perpetual, 30- 

years, or the maximum duration 

permitted by State law. The duration of 

a 30-year contract on acreage owned by 

Indian Tribes is 30 years. 

(b) Acreage limitations. (1) No more 

than 25 percent of the total cropland in 

any county, as determined by the Farm 

Service Agency, may be enrolled in CRP 

and ACEP–WRE, and no more than 10 

percent of the total cropland in the 

county may be subject to an easement 

under ACEP–WRE. 

(2) The limitations in paragraph (1) of 

this subsection do not apply to areas 

devoted to windbreaks or shelterbelts 

after November 28, 1990, or to cropland 

designated by NRCS with ‘‘subclass w’’ 

in the land capability classes IV through 

VIII because of severe use limitations 

due to factors related to excess water 

such as poor soil drainage, wetness, 

high water table, soil saturation, or 

inundation. 

(3) NRCS and the Farm Service 

Agency will concur before a waiver of 

the 25 percent limit of paragraph (b)(1) 

of this section can be approved for an 

easement proposed for enrollment in 

ACEP–WRE. Such a waiver will only be 

approved if the waiver will not 

adversely affect the local economy, and 

operators in the county are having 

difficulties complying with the 

conservation plans implemented under 

16 U.S.C. 3812. 

(c) Landowner eligibility. To be 

eligible to enroll in the ACEP–WRE, all 

landowners must be in compliance with 

the highly erodible land and wetland 

conservation provisions in 7 CFR part 

12. Persons or legal entities must be in 

compliance with the Adjusted Gross 

Income Limitation provisions at 7 CFR 

part 1400 and: 

(1) Be the landowner of eligible land 

for which enrollment is sought; 

(2) Provide any documentation 

required by NRCS as necessary to 

determine eligibility; 

(3) Comply with applicable 

registration and reporting requirements 

of the Federal Funding Accountability 

and Transparency Act of 2006 (Pub. L. 

109–282, as amended), and 2 CFR parts 

25 and 170; and 

(4) For easement applications, have 

been the landowner of such land for the 

24-month period prior to the time of 

application unless it is determined by 

NRCS that: 

(i) The land was acquired by will or 

succession as a result of the death of the 

previous landowner or pursuant to the 

terms of an existing trust, 

(ii) The ownership change occurred 

due to foreclosure on the land and the 

owner of the land immediately before 

the foreclosure exercises a right of 

redemption from the mortgage holder in 

accordance with State law, or 

(iii) The land was acquired under 

circumstances that give adequate 

assurances, as determined by NRCS, 


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that such land was not acquired for the 

purposes of placing it in the program. 

Adequate assurances will include 

documentation that the change of 

ownership resulted from circumstances 

such as: 

(A) The prior landowner owned the 

land for 2 years or more and transferred 

ownership amongst members of the 

immediate family (father, mother, 

spouse, children, grandparents, or 

grandchildren), 

(B) A completion of a contract for 

deed entered into 24 months or more 

prior to the application date, 

(C) The new landowner had leased 

the land for agricultural purposes for 24 

months or more prior to the application 

date, or 

(D) The easement area is a portion of 

a larger property where the majority 

portion was acquired for agriculture 

purposes. 

(4) Agree to provide such information 

to NRCS as the agency deems necessary 

to assist in its determination of 

eligibility for program benefits and for 

other program implementation 

purposes. 

(d) Transfer of parcel before purchase 

of easement. When a parcel of land that 

has been accepted for enrollment into 

the ACEP–WRE is sold or transferred 

prior to NRCS purchase of the easement, 

NRCS will cancel the application or 

agreement to purchase and remove the 

acres from enrollment unless the new 

landowner meets the requirements of 

paragraph (c) of this section and accepts 

the terms and conditions of enrollment. 

The new landowner must submit 

required documentation for NRCS 

review and execute any required 

agreements or contracts. The decision to 

approve and execute an enrollment 

transferred prior to closing is at NRCS’ 

discretion. 

(e) Land eligibility. (1) Only private 

land or acreage owned by an Indian 

Tribe may be considered for enrollment 

into ACEP–WRE. 

(2) NRCS will determine whether land 

is eligible for enrollment and whether, 

once found eligible, the lands may be 

included in the program based on the 

likelihood of successful restoration of 

such land and resultant wetland 

functions and values merit inclusion of 

such land in the program when 

considering the cost of acquiring the 

easement and the cost of the restoration, 

protection, enhancement, maintenance, 

and management. 

(3) Land will only be considered 

eligible for enrollment in the ACEP– 

WRE if NRCS determines, in 

consultation with the FWS, that the 

enrollment of such land maximizes 

wildlife benefits and wetland function 

and values. 

(4) To be determined eligible, NRCS 

must also determine that such land is— 

(i) Farmed wetland or converted 

wetland, together with adjacent lands 

that are functionally dependent on the 

wetlands, if such land is identified by 

NRCS as: 

(A) Wetlands farmed under natural 

conditions, farmed wetlands, prior 

converted cropland, commenced 

conversion wetlands, farmed wetland 

pastures, and lands substantially altered 

by flooding so as to develop and retain 

wetland functions and values; or 

(B) Former or degraded wetlands that 

occur on lands that have been used or 

are currently being used for the 

production of food and fiber, including 

rangeland and forest production lands, 

where the hydrology has been 

significantly degraded or modified and 

will be substantially restored; or 

(C) Farmed wetland and adjoining 

land enrolled in CRP that has the 

highest wetland functions and values 

and is likely to return to production 

after the land leaves CRP; or 

(D) A riparian area along a stream or 

other waterway that links, or after 

restoring the riparian area, will link 

wetlands protected by the ACEP–WRE 

easement, another easement, or other 

device or circumstance that achieves the 

same objectives as an ACEP–WRE 

easement; or 

(ii) Cropland or grassland that was 

used for agricultural production prior to 

flooding from the natural overflow of: 

(A) A closed basin lake, together with 

adjacent land that is functionally 

dependent upon it, if the State or other 

entity is willing to provide 50 percent 

share of the cost of the an easement; or 

(B) A pothole and adjacent land that 

is functionally dependent on it; and 

(C) The size of the parcel offered for 

enrollment is a minimum of 20 

contiguous acres. Such land meets the 

requirement of likelihood of successful 

restoration only if the soils are hydric 

and the depth of water is 6.5 feet or less. 

(5) If land offered for enrollment is 

determined eligible under this 

subsection, then NRCS may also enroll 

land adjacent or contiguous to such 

eligible land together with the eligible 

land, if such land maximizes wildlife 

benefits and contributes significantly to 

wetland functions and values. Such 

adjacent or contiguous land may 

include buffer areas, created wetlands, 

noncropped natural wetlands, riparian 

areas that do not meet the requirements 

of paragraph (e)(4)(i)(D) of this section, 

and restored wetlands, but not more 

than NRCS, in consultation with the 

State Technical Committee, determines 

is necessary to maximize wildlife 

benefits and contribute significantly to 

wetland functions and values. NRCS 

will not enroll as adjacent or contiguous 

land any constructed wetlands that treat 

wastewater or contaminated runoff. 

(6) To be enrolled in the program, 

eligible land must have sufficient access 

and be configured in a size and with 

boundaries that allow for the efficient 

management of the area for program 

purposes and otherwise promote and 

enhance program objectives as 

determined by NRCS. 

(f) Enrollment of CRP lands. Land 

subject to an existing CRP contract may 

be enrolled in ACEP–WRE only if the 

land and landowner meet the 

requirements of this part and the 

enrollment is requested by the 

landowner and agreed to by NRCS. To 

enroll in ACEP–WRE, the CRP contract 

for the property must be terminated or 

otherwise modified subject to such 

terms and conditions as are mutually 

agreed upon by FSA and the landowner. 

(g) Ineligible land. The following land 

is not eligible for enrollment in the 

ACEP–WRE: 

(1) Converted wetlands if the 

conversion was commenced after 

December 23, 1985; 

(2) Land established to trees under the 

CRP, except in cases where the land 

meets all other WRE eligibility criteria, 

the established cover conforms to WRE 

restoration requirements and NRCS 

specifications, an active CRP contract 

will be terminated or otherwise 

modified upon purchase of the WRE 

easement, and any additional criteria 

NRCS uses to determine if enrollment of 

such lands would further the purposes 

of the program; 

(3) Lands owned the United States 

other than held in trust for Indian 

Tribes; 

(4) Lands owned in fee title by a State, 

including an agency or a subdivision of 

a State or a unit of local government; 

(5) Land subject to an easement or 

deed restriction which, as determined 

by NRCS, provides similar restoration 

and protection of wetland functions and 

values as would be provided by 

enrollment in ACEP–WRE; 

(6) Lands where the purposes of the 

program or implementation of 

restoration practices would be 

undermined due to onsite or offsite 

conditions, including, but not limited 

to— 

(i) Risk of hazardous substances either 

onsite or offsite, 

(ii) Proposed or existing rights of way, 

either onsite or offsite, for infrastructure 

development, or 

(iii) Adjacent land uses, such as 

airports, that would either impede 


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11062 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

complete restoration or prevent wetland 

functions and values from being fully 

restored; or 

(7) Land which NRCS determines to 

have unacceptable exceptions to clear 

title or legal access that is encumbered, 

nontransferable, restricted, or otherwise 

insufficient. 

§ 1468.31 Application procedures. 

(a) Application for participation. To 

apply for enrollment, a landowner must 

submit an application to NRCS. 

(b) Preliminary agency action. By 

filing an application, the landowner 

consents to an NRCS representative 

entering upon the land for purposes of 

assessing the wetland functions and 

values and for other activities, such as 

the ranking and development of the 

preliminary WRPO, that are necessary 

or desirable for NRCS to evaluate 

applications. The landowner is entitled 

to accompany an NRCS representative 

on any site visits. 

(c) Voluntary reduction in costs. In 

order to enhance the probability of 

enrollment in ACEP–WRE, the 

landowner or someone other than the 

landowner may offer to contribute 

financially to the cost of the acquisition 

or restoration of the wetland reserve 

easement to leverage Federal funds. 

This offer must be made in writing to 

NRCS. 

§ 1468.32 Establishing priorities, ranking 

consideration and project selection. 

(a) When evaluating easement or 30- 

year contract applications from 

landowners, NRCS, with advice from 

the State Technical Committee, may 

consider: 

(1) The conservation benefits of 

obtaining an easement or other interest 

in the land, including but not limited to: 

(i) Habitat that will be restored for the 

benefit of for migratory birds and 

wetland-dependent wildlife, including 

diversity of wildlife that will be 

benefitted or life-cycle needs that will 

be addressed; 

(ii) Extent and use of habitat that will 

be restored for threatened, endangered, 

or other at-risk species or number of 

different at-risk species benefitted; 

(iii) Protection or restoration of native 

vegetative communities; 

(iv) Habitat diversity and complexity 

to be restored; 

(v) Proximity and connectivity to 

other protected habitats; 

(vi) Extent of beneficial adjacent land 

uses; 

(vii) Proximity to impaired water 

bodies; 

(viii) Extent of wetland losses within 

a geographic area, including wetlands 

generally or specific wetland types; 

(ix) Hydrology restoration potential, 

which must comprise at least 50 percent 

of the points for conservation benefits. 

(2) The cost effectiveness of each 

easement; 

(3) Whether the landowner or another 

person is offering to contribute 

financially to the cost of the easement 

or other interest in the land to leverage 

Federal funds; 

(4) The extent to which the purposes 

of this part would be achieved on the 

land; 

(5) The productivity of the land; 

(6) The on-farm and off-farm 

environmental threats if the land is used 

for the production of agricultural 

commodities. 

(7) Such other factors as NRCS 

determines are necessary to carry out 

the purposes of the program. 

(b) To the extent practicable, taking 

into consideration costs and future 

agricultural and food needs, NRCS will 

give priority to: 

(1) Obtaining permanent easements 

over shorter term easements; and 

(2) Acquiring easements based on the 

value of the easement for protecting and 

enhancing habitat for migratory birds 

and other wildlife, in consultation with 

FWS, as may be appropriate. 

(c) NRCS, in consultation with the 

State Technical Committee, may place 

higher priority on: 

(1) Certain land types or geographic 

regions of the State where restoration of 

wetlands may better achieve State and 

regional goals and objectives; and 

(2) Land that is currently enrolled in 

CRP in a contract that is set to expire 

within one year from the date of 

application and is farmed wetland and 

adjoining land that has the highest 

wetland functions and values and is 

likely to return to production after the 

land leaves CRP. 

(d) Notwithstanding any limitation of 

this part regarding priority ranking, 

NRCS may enroll eligible lands at any 

time in order to encompass total 

wetland areas subject to multiple 

ownership or otherwise to achieve 

program objectives. NRCS may, at any 

time, exclude enrollment of otherwise 

eligible lands if the participation of the 

adjacent landowners is essential to the 

successful restoration of the wetlands 

and those adjacent landowners are 

unwilling or ineligible to participate. 

NRCS may coordinate with other 

Federal, State, and nonprofit 

organizations to encourage the 

restoration of wetlands on adjacent 

ineligible lands, especially in priority 

geographic areas. 

§ 1468.33 Enrollment process. 

(a) Tentative selection. Based on the 

priority ranking, NRCS will notify an 

affected landowner of tentative 

acceptance into the program. 

(b) Effect of notice of tentative 

selection. The notice of tentative 

acceptance into the program does not 

bind NRCS or the United States to enroll 

the proposed project in ACEP–WRE, nor 

does it bind the landowner to continue 

with enrollment in the program. The 

notice informs the landowner of NRCS’ 

intent to continue the enrollment 

process on their land. 

(c) Acceptance and effect of offer of 

enrollment—(1) Wetland reserve 

easement. For applications requesting 

enrollment through a wetland reserve 

easement, NRCS will present an 

agreement to purchase to the landowner 

which will describe the easement area, 

the easement compensation amount, the 

easement terms and conditions, and 

other terms and conditions for 

participation that may be required by 

NRCS as appropriate. The easement 

compensation amount will be based 

upon the lowest of the fair market value 

of the land, the geographic area rate cap, 

or the landowner offer, as provided in 

§ 1468.34 of this part. The landowner 

accepts enrollment in the ACEP–WRE 

by signing the agreement to purchase. 

NRCS will continue with easement 

acquisition activities after the property 

has been enrolled. 

(2) 30-year contract. For applications 

requesting enrollment of acreage owned 

by an Indian tribe through the 30-year 

contract option, NRCS will present an 

agreement to enter 30-year contract to 

the Tribal landowner which will 

describe the contract area, the contract 

terms and conditions, and other terms 

and conditions for participation that 

may be required by NRCS as 

appropriate. The Tribal landowner 

accepts enrollment in the ACEP–WRE 

by signing the agreement to enter 30- 

year contract. NRCS will proceed with 

implementation of the WRPO after the 

30-year contract has been executed. 

(d) Restoration responsibility and the 

scope of enrollment. (1) The enrollment 

document establishes the terms of 

enrollment consistent with the terms 

and conditions of this part and 

identifies the: 

(i) Scope of the agreement between 

NRCS and the landowner, 

(ii) Basis for NRCS to obligate funds, 

and 

(iii) Nature and method through 

which NRCS will provide ACEP–WRE 

technical and financial assistance to the 

landowner. 

(2) The agreement to purchase 

between NRCS and the landowner 

under the easement option constitutes 

the agreement for: 


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(i) Granting an easement on the 

enrolled land and sufficient access to 

the enrolled land as set forth under 

§ 1468.37, 

(ii) Implementing a WRPO which 

provides for the restoration and 

protection of the wetland functions and 

values, 

(iii) Recording the easement in 

accordance with applicable State law, 

(iv) Ensuring the title to the easement 

is superior to the rights of all others, 

except for exceptions to the title that are 

deemed acceptable by NRCS and in 

accordance with Department of Justice 

Title Standards, and 

(v) Withholding the landowner’s 

share of the restoration cost from the 

easement payment for 30-year or nonpermanent easement or 30-year contract 

enrollments. 

(3) The terms of the easement 

identified in paragraph (d)(2)(i) of this 

section includes the landowner’s 

agreement to the implementation of a 

WRPO identified in paragraph (d)(2)(ii) 

of this section. In particular, the 

easement deed identifies that NRCS has 

the right to enter the easement area to 

undertake on its own or through an 

agreement with the landowner or other 

entity, any activities to restore, protect, 

manage, maintain, enhance, and 

monitor the wetland and other natural 

values of the easement area. 

(4) At the time NRCS enters into an 

agreement to purchase, NRCS agrees, 

subject to paragraph (e) of this section, 

to acquire and provide for restoration of 

the land enrolled into the program. 

(e) Withdrawal of offer of enrollment. 

Prior to execution of the easement deed 

by the United States and the landowner, 

NRCS may withdraw the land from 

enrollment at any time due to lack of 

availability of funds, inability to clear 

title, insufficient access, sale of the land, 

risk of hazardous substance 

contamination, or other reasons. 

(f) Landowner failure to accept 

enrollment offer in timely manner. The 

offer of enrollment to the landowner 

will be void if not executed by the 

landowner within the time specified. 

§ 1468.34 Compensation for easements 

and 30-year contracts. 

(a) Determination of easement 

payment rates. (1) Compensation for an 

easement or 30-year contract under this 

part will be made in cash in such 

amount as is agreed to and specified in 

the agreement to purchase or agreement 

to enter 30-year contract and finalized 

in the warranty easement deed or 30- 

year contract. 

(2) Payments for 30-year easements, 

nonpermanent easements as limited by 

State law, or 30-year contracts will be 

not more than 75 percent of that which 

would have been paid for a permanent 

easement as determined by the methods 

listed in paragraph (a)(3) of this section. 

(3) NRCS will pay as compensation 

the lowest of the following: 

(i) The fair market value of the land 

using the Uniform Standards for 

Professional Appraisal Practices or 

based on an areawide market analysis or 

survey, 

(ii) The geographic area rate cap 

determined under paragraph (a)(4) of 

this section, or 

(iii) A written offer made by the 

landowner. 

(4) Each fiscal year NRCS, in 

consultation with the State Technical 

Committee, will establish one or more 

geographic area rate caps within a State. 

NRCS will determine the geographic 

area rate cap using the best information 

which is readily available in that State. 

Such information may include: soil 

types, types of crops capable of being 

grown, production history, location, real 

estate market values, and tax rates and 

assessments. 

(b) Acceptance of offered easement 

compensation. (1) NRCS will not 

acquire any easement unless the 

landowner accepts the amount of the 

easement payment offered by NRCS. 

The easement payment may or may not 

equal the fair market value of the 

interests and rights to be conveyed by 

the landowner under the easement. 

(2)(i) For easements or 30-year 

contracts valued at $500,000 or less, 

NRCS will provide compensation in up 

to 10 annual payments, as requested by 

the participant, as specified in the 

agreement to purchase or agreement to 

enter 30-year contract between NRCS 

and the participant. 

(ii) For easements or 30-year contracts 

valued at more than $500,000, NRCS 

may provide compensation in at least 5, 

but not more than 10 annual payments. 

NRCS may provide compensation in a 

single payment for such easements or 

30-year contracts when, as determined 

by the NRCS Chief, it would further the 

purposes of the program. The applicable 

payment schedule will be specified in 

the agreement to purchase a 

conservation easement (APCE) or 

agreement to enter contract for 30-year 

land use, entered into between NRCS 

and the landowner. 

(c) Reimbursement of a landowner’s 

expenses. For completed easement 

conveyances, NRCS will reimburse the 

landowner for fair and reasonable 

expenses, if any, incurred for legal 

boundary surveys and other related 

costs, as authorized and determined by 

NRCS. 

(d) Per acre basis calculations. If 

easement or 30-year contract payments 

are calculated on a per acre basis, NRCS 

will identify an estimated amount in its 

agreement to purchase and the final 

easement or 30-year contract payment 

will be made based on final 

determination of acreage and specified 

in the warranty easement deed or 30- 

year contract. 

§ 1468.35 Wetland Reserve Enhancement 

Partnerships. 

(a) The purpose of the Wetland 

Reserve Enhancement Partnership 

(WREP) option is to target and leverage 

resources to address high priority 

wetland protection, restoration, and 

enhancement objectives through 

agreements with States (including a 

political subdivision or agency of a 

State), nongovernmental organizations, 

or Indian Tribes. 

(b) NRCS will establish priorities for 

funding, required level of partner 

contribution of resources, ranking 

criteria, and other criteria. Among other 

selection criteria, NRCS will prioritize 

proposals that address wetland 

restoration needs of national or regional 

importance, including special project or 

area-wide proposals. 

(c) NRCS will make the information 

regarding WREP available to the public 

and potential partners. 

(d) NRCS will evaluate proposals and 

make final funding selections based 

upon the priorities identified in the 

public notice of funding availability. 

(e) NRCS will enter into WREP 

agreements with partners who have 

projects selected for funding. 

§ 1468.36 WRPO payments. 

(a) NRCS may provide financial 

assistance for implementing the WRPO 

on the enrolled land. The amount and 

terms and conditions of the financial 

assistance will be subject to the 

following restrictions on the costs of 

establishing or installing conservation 

practices or activities specified in the 

WRPO: 

(1) On enrolled land subject to a 

permanent easement, NRCS will offer to 

pay at least 75 percent but not more 

than 100 percent of such costs; and 

(2) On enrolled land subject to a 30- 

year or nonpermanent easement or 30- 

year contract, NRCS will offer to pay at 

least 50 percent but not more than 75 

percent of such costs. The landowner’s 

share of the WRPO implementation 

costs may be withheld from the 

easement or 30-year contract payment. 

(b) Payments may be made only upon 

a determination by NRCS that an 

eligible conservation practice or 

component of the conservation practice 


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11064 Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 

has been implemented in compliance 

with appropriate NRCS standards and 

specifications; or an eligible activity has 

been implemented in compliance with 

the appropriate requirements detailed in 

the WRPO. 

(c) Payments may be made for 

replacement of an eligible conservation 

practice, if NRCS determines that the 

practice is still needed and that the 

failure of the original conservation 

practice was due to reasons beyond the 

control of the participant. 

(d) A participant may seek additional 

assistance from other public or private 

organizations as long as the 

conservation practices or activities 

funded are approved by NRCS and 

implemented in compliance with this 

part. 

§ 1468.37 Easement and 30-year contract 

participation requirements. 

(a) Easement requirements. (1) To 

enroll eligible land in ACEP–WRE 

through the permanent or 30-year 

easement option, a landowner will grant 

an easement to the United States. The 

easement will require that the easement 

area be maintained in accordance with 

ACEP–WRE goals and objectives for the 

duration of the term of the easement, 

including the restoration, protection, 

enhancement, maintenance, and 

management of wetland and other land 

functions and values. 

(2) For the duration of its term, the 

easement will require, at a minimum, 

that the landowner and the landowner’s 

heirs, successors, and assigns will 

cooperate in the restoration, protection, 

enhancement, maintenance, and 

management of the land in accordance 

with the warranty easement deed and 

with the terms of the WRPO. In 

addition, the easement will grant to the 

United States: 

(i) A sufficient right of legal access to 

the easement area, 

(ii) The right to authorize compatible 

uses of the easement area, including 

such activities as hunting and fishing, 

managed timber harvest, or periodic 

haying or grazing, if such use is 

consistent with the long-term protection 

and enhancement of the wetland 

resources for which the easement was 

established, 

(iii) All rights, title, and interest in the 

easement area except those rights 

specifically reserved in the deed, and 

(iv) The right to restore, protect, 

enhance, maintain, and manage 

activities on the easement area. 

(3) The landowner will convey title to 

the easement in a manner that is 

acceptable to NRCS. The landowner will 

warrant that the easement granted to the 

United States is superior to the rights of 

all others, except for title exceptions 

deemed acceptable by NRCS. 

(4) The participant will: 

(i) Comply with the terms of the 

easement, 

(ii) Comply with all terms and 

conditions of any related contract or 

agreement, 

(iii) Agree to the permanent 

retirement of any existing cropland base 

and allotment history for the easement 

area, as determined by FSA, 

(iv) Agree to the long-term restoration, 

protection, enhancement, maintenance, 

and management of the easement in 

accordance with the terms of the 

easement and related agreements, and 

(v) Agree that each person or legal 

entity that is subject to the easement 

will be jointly and severally responsible 

for compliance with the easement and 

the provisions of this part and for any 

refunds or payment adjustment which 

may be required for violation of any 

terms or conditions of the easement or 

the provisions of this part. 

(b) 30-year contract requirements. (1) 

To enroll eligible land in ACEP–WRE 

through the 30-year contract option, a 

landowner will enter into a contract 

with NRCS. The contract will require 

that the enrolled area be maintained in 

accordance with ACEP–WRE goals and 

objectives for the duration of the 

contract, including the restoration, 

protection, enhancement, maintenance, 

and management of wetland and other 

land functions and values. 

(2) For the duration of the 30-year 

contract, the contract will require, at a 

minimum, that the landowner and the 

landowner’s heirs, successors, and 

assigns will, consistent with the terms 

of this part, cooperate in the restoration, 

protection, enhancement, maintenance, 

and management of the land in 

accordance with the contract and with 

the terms of the WRPO. In addition, the 

30-year contract will grant to NRCS: 

(i) A sufficient right of legal access to 

the entire contract area for the duration 

of the contract, 

(ii) The right to authorize compatible 

uses of the contract area, including such 

activities as a traditional Tribal use of 

the land, hunting and fishing, managed 

timber harvest, or periodic haying or 

grazing if such use is consistent with the 

long-term protection and enhancement 

of the wetland resources for which the 

contract was established, and 

(iii) The right to restore, protect, 

enhance, maintain, and manage 

activities on the enrolled area. 

(3) The landowner will: 

(i) Comply with the terms of the 

contract, 

(ii) Comply with all terms and 

conditions of any associated agreement, 

(iii) Agree to the long-term 

restoration, protection, enhancement, 

maintenance, and management of the 

enrolled area in accordance with the 

terms of the contract and related 

agreements, and 

(iv) Agree that each person or legal 

entity that is subject to the contract will 

be jointly and severally responsible for 

compliance with the contract and the 

provisions of this part and for any 

refunds or payment adjustment which 

may be required for violation of any 

terms or conditions of the contract or 

the provisions of this part. 

(c) Reservation of grazing rights. (1) 

NRCS may include in the terms and 

conditions of an easement a provision 

under which the landowner reserves 

grazing rights if NRCS determines that 

the reservation and use of the grazing 

rights: 

(i) Is compatible with the land subject 

to the wetland reserve easement or 30- 

year contract, 

(ii) Is consistent with the historical 

natural uses of the land and long-term 

wetland protection and enhancement 

goals for which the wetland reserve 

easement or 30-year contract was 

established, 

(iii) Is subject to a recorded Exhibit to 

the deed outlining grazing purposes and 

limitations, and 

(iv) Complies with a WRPO 

developed by NRCS. 

(2) Compensation for easements or 30- 

year contracts where the grazing rights 

are reserved under this subsection will 

be based on the method described in 

§ 1468.34, except such compensation 

will be reduced by an amount equal to 

the value of the reserved grazing rights, 

as determined by NRCS. 

§ 1468.38 The WRPO development. 

(a) The WRPO will be developed as 

determined by NRCS in consultation 

with the State Technical Committee and 

consideration of available site-specific 

technical input from FWS and others as 

appropriate. 

(b) The WRPO will specify the 

manner in which the enrolled land will 

be restored, protected, enhanced, 

maintained, and managed to accomplish 

the goals of the program. The WRPO 

will be developed to ensure that cost 

effective restoration and maximization 

of wildlife benefits and wetland 

functions and values will result. 

Specifically, the WRPO will consider 

and address, to the extent practicable, 

the onsite alternations and the offsite 

watershed conditions that adversely 

impact the hydrology and associated 

wildlife and wetland functions and 

values. 


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Federal Register / Vol. 80, No. 39 / Friday, February 27, 2015 / Rules and Regulations 11065 

§ 1468.39 Violations and remedies. 

(a) Easement violations. (1) In the 

event of a violation of the easement or 

30-year contract involving the 

landowner, the landowner will be given 

reasonable notice and an opportunity to 

voluntarily correct the violation within 

30 days of the date of the notice, or such 

additional time as NRCS determines is 

necessary to correct the violation at the 

landowner’s expense. 

(2) Notwithstanding paragraph (a)(1) 

of this section, NRCS reserves the right 

to enter upon the easement area at any 

time to remedy deficiencies or easement 

violations. Such entry may be made at 

the discretion of NRCS when such 

actions are deemed necessary to protect 

important wetland functions and values 

or other rights of the United States 

under the easement. The landowner will 

be liable for any costs incurred by the 

United States as a result of the 

landowner’s failure to comply with 

easement obligations. 

(3) If there is failure to comply with 

easement obligations, the easement will 

remain in effect, and NRCS may, in 

addition to any other remedy available 

to the United States, retain any payment 

otherwise required to be paid under this 

part and require the refund of any 

payment previously made under this 

part. 

(b) 30-year contract or wetland reserve 

easement restoration agreements 

violations. (1) If NRCS determines that 

a landowner is in violation of the terms 

of a 30-year contract or wetland reserve 

easement restoration agreement, or 

documents incorporated by reference 

into the 30-year contract or wetland 

reserve easement restoration agreement, 

the landowner will be given reasonable 

notice and an opportunity to voluntarily 

correct the violation within 30 days of 

the date of the notice, or such additional 

time as NRCS determines is necessary to 

correct the violation. If the violation 

continues, NRCS may terminate the 30- 

year contract or wetland reserve 

easement restoration agreement. 

(2) Notwithstanding the provisions of 

paragraph (b)(1) of this section, a 30- 

year contract or wetland reserve 

easement restoration agreement 

termination is effective immediately 

upon a determination by the NRCS that 

the landowner has: 

(i) Submitted false information, 

(ii) Filed a false claim, or 

(iii) Engaged in any act for which a 

finding of ineligibility for payments is 

permitted under this part. 

(3) If NRCS terminates a 30-year 

contract or wetland reserve easement 

restoration agreement, the landowner 

will forfeit all rights for future payments 

under the 30-year contract or wetland 

reserve easement restoration agreement, 

and must refund all or part, as 

determined by NRCS, of the payments 

received, plus interest. 

Signed this 13th day of February, 2015, in 

Washington, DC. 

Jason A. Weller, 

Vice-President, Commodity Credit 

Corporation and Chief, Natural Resources 

Conservation Service. 

[FR Doc. 2015–03781 Filed 2–26–15; 8:45 am] 

BILLING CODE 3410–16–P 


tkelley on DSK3SPTVN1PROD with RULES3