Purpose: To provide guidance for implementing the ACEP program in FY23 and easement monitoring on prior acquisitions.

The Agricultural Improvement Act of 2018 (the “2018 Farm Bill”) was signed into law on December 20, 2018, and continued authorization for ACEP. The 2018 Farm Bill also maintained NRCS’s authorization to continue to implement and administer existing Farm and Ranch Lands Protection Program (FRPP), Grassland Reserve Program (GRP), and Wetlands Reserve Program (WRP) contracts, agreements, and easements.

The guidance provided here is in lieu of forthcoming guidance from NRCS National Headquarters (NHQ) specific to FY23 and therefore subject to possible updates. As such, updates to applications may be necessary at a later time. Be assured NRCS WV will work diligently to communicate any new requirements or procedures as effectively and efficiently as possible.

ACEP enrollment agreements including, but not limited to, Wetland Reserve Easement (WRE) purchase agreements, ALE agreements, easement deeds and deed terms, including WRE warranty easement deeds, and Agricultural Land Easement (ALE) regulatory deed requirements and associated minimum deed terms, are Farm Bill specific. Therefore, enrollments under the 2014 Farm Bill must use the versions of the enrollment and easement documents approved for use under the 2014 Farm Bill. Similarly, enrollments under the 2018 Farm Bill must use the versions of the enrollment and easement documents approved for use under the 2018 Farm Bill.

ACEP ALE & RCPP ALE Applications

Applications for ALE are only accepted from Eligible Entities. Eligible Entities include state or local units of government, Indian Tribes, or Non-Governmental Organizations (NGOs) such as a conservancy or a land trust. Applications from individual landowners are not accepted. Eligible Entities can access the complete application materials and instruction guides at the NRCS WV ACEP ALE web page. The FY23 ACEP ALE ranking criteria will also be available at this web page no less than 30 days before the application cutoff date. The ACEP ALE and RCPP ALE Application Guidance document, attached to this notice and also available on the web page, must be followed for all ALE applications in FY23.

Eligible Entities must have a DUNS number along with an active registration in SAM.gov. NRCS will accept only electronic submissions. All application materials from Eligible Entities must be e-mailed to the Easements Inbox (NRCS.WVEasements@usda.gov) by the application cutoff date. A complete application is one that is submitted on the appropriate forms, filled out accurately and completely, accompanied by all required supporting documentation outlined in the ACEP ALE and RCPP ALE Application Guidance document, and signed by all required parties. Only properly completed and executed applications submitted by the application cutoff date will be considered for funding in FY23. NRCS Field Office (FO) Staff should work with local Eligible Entities to help them complete the application packages. As necessary, FO Staff should assist them with generating the maps required in the ACEP ALE and RCPP ALE Application Guidance document. Example maps are available on the NRCS WV ACEP ALE web page and must be utilized as a guide to creating acceptable map products.

Following the application cutoff date, NRCS FO Staff will conduct onsite ranking, preliminary planning, due diligence (i.e., Landowner Disclosure Worksheet, Hazardous Materials Field Inspection Checklist, and Hazardous Materials Landowner Interview), and enter all ACEP ALE and RCPP ALE applications in the appropriate NRCS Business Tools. These Business Tools include, but are not limited to: ProTracts for ACEP ALE, Conservation Desktop (CD) for ACEP ALE and RCPP ALE, the Conservation Assessment Ranking Tool (CART) for ACEP ALE and RCPP ALE, and the Document Management System (DMS) for ACEP ALE. National Easement Staging Tool (NEST) data for RCPP ALE applications will be entered by State Office (SO) Easement Staff. See attached for the ACEP ALE and RCPP ALE application process tentative timeline. Please note this timeline is tentative and therefore is subject to change. Also, please note:

• All eligible NRCS easement program applications are assessed and ranked in CART. Incomplete and/or ineligible ACEP ALE and RCPP ALE applications will not be ranked.
• NRCS WV prohibits subdivision of protected properties enrolled in ACEP ALE and RCPP ALE. Therefore, applications requesting subdivision will be considered incomplete due to inconsistency with NRCS WV policy.
• NRCS WV requires the number of residential dwellings/retained development rights to be identified at the time of application; and the location of residential dwellings/retained development rights to be identified before closing. Locating residential dwellings/retained development rights after closing (i.e., “floating development rights”) is not permitted.
• If there is an exception to the easement not contiguous to the boundary and/or not owned by the applicant (i.e., an “in-holding”), the State Conservationist requires that in-holding, and access to that in-holding, to be surveyed out prior to making application to NRCS WV. The new boundary survey, and evidence of ownership to the in-holding if necessary, must be included in the application packet otherwise the application will be considered incomplete.

ACEP ALE & RCPP ALE Enrollments

For each parcel, the Eligible Entity must review for local acceptability and then send to NRCS:

1. An electronic copy of the appraisal report.
   • Please note the NRCS Specifications and Scope of Work for Appraisals of Real Property are an Exhibit to every ALE agreement. Eligible Entities must provide these documents to their appraisers.
2. An electronic copy of the title commitment and all the underlying documents.
   • Including a summary of the findings and draft instruments needed to clear title.
3. A new boundary survey plat and legal description(s) to State survey standards.
   • This will include the location of, and access to, residential and retained development rights areas.
   • If NRCS determines an older survey plat and legal description(s) to be acceptable then a new survey may not be required.
4. A map of the existing and proposed farmstead complex areas.
   • Please note that farmstead complex areas should not be excessively large and should be limited in number. Generally, these areas should be located near existing farm roads or travel ways. Existing farm structures shall be included.
5. An electronic copy of the draft baseline documentation report.
6. A Forest Management Plan, as applicable.
   • According to the NRCS NHQ approved template deed for WV, easement property with contiguous forest that exceeds the greater of 40 acres or 20 percent of the easement area will have a current forest management plan that is subject to approval by the Grantee and NRCS. Please contact the Easements Inbox (NRCS.WVEasements@usda.gov) for a copy of the NRCS Easement Forest Management Plan Criteria.
7. An electronic copy of the Agricultural Land Easement Deed.
8. Other supporting documentation as necessary to complete the easement transaction (e.g., draft subordination agreements, releases, affidavits, maps, signature authority documentation, Confirmation of Matching Funds, Closing Agent Requirements, Closing Protection Letter, Settlement Statement, Direct Deposit Forms for the Eligible Entity and Closing Attorney, Easement Payment Application, etc.).

For each parcel, NRCS WV will:

1. Conduct an NRCS check of the appraisal and then, if acceptable, procure an Appraisal Technical Review. NRCS WV will provide the Eligible Entity with notification of the acceptability of the appraisal per the NRCS check, information on the changes needed to meet the NRCS Specifications and Scope of Work for Appraisals of Real Property, or the Appraisal Technical Review results, as applicable.
2. Examine the title commitment, all the underlying documentation, and any associated draft instruments necessary to clear title. NRCS WV will provide the Eligible Entity with notification of the acceptability of the title commitment’s Requirements and Exceptions or information on remaining title issues that must be remedied.
3. Review the boundary survey plat and legal description(s). NRCS WV will notify the Eligible Entity whether the survey plat and legal description(s) are approved or if additional changes are needed.
4. Review the map of existing and proposed farmstead complex areas. NRCS WV will notify the Eligible Entity whether the map is approved or if additional changes are needed.
5. Review the draft baseline documentation report. NRCS WV will notify the Eligible Entity whether the baseline is approved or if additional changes are needed.
6. For easements enrolled under the 2018 Farm Bill, all parcels that contain cropland that is Highly Erodible Land (HEL) must have a Conservation Plan developed by NRCS or an NRCS-certified conservation planner. For easements enrolled under the 2014 Farm Bill, the Agricultural Land Easement Plan will be completed by NRCS or an NRCS-certified conservation planner.
7. Review the Forest Management Plan, as applicable. NRCS WV will notify the Eligible Entity whether the Forest Management Plan is approved or if additional changes are needed.
8. Review the Agricultural Land Easement Deed for conformance to policy and required deed terms. NRCS WV will provide the Eligible Entity with notification of the acceptability of the Agricultural Land Easement Deed or a list of changes needed to meet ALE program purposes.
   • NRCS WV will forward Agricultural Land Easement Deeds to NHQ for review when NHQ review is required per policy.
9. Prior to closing, NRCS WV will conduct all state-level Internal Controls (IC) reviews and will forward easement documentation to NHQ for national IC review as required by policy. NRCS WV will provide the Eligible Entity with notification of approval to close the Agricultural Land Easement along with the closing instructions or whether additional matters need addressed in order to obtain approval to close.

Within 30 days of recordation or with the request for reimbursement, whichever is sooner, the Eligible Entity must provide NRCS WV a copy of the:

1. Recorded Agricultural Land Easement Deed.
2. Any recorded clearance documents (e.g., subordination agreements, releases, affidavits, etc.).
3. The final title policy of insurance.

Persons and legal entities applying for NRCS programs must complete form CCC-902, “Farm Operating Plan,” along with all Farm Service Agency (FSA) required information for County Office Commission (COC) determinations, and remit to the local FSA Office promptly unless already in a “filed” or “determined” status. Existing participants must also file the same if not already in a “filed” or “determined” status according to FSA records.

In addition, please also complete and submit form AD-1026, “Highly Erodible Land Conservation (HEL) and Wetland Conservation (WC) Certification” and form CCC-941 “Average Adjusted Gross Income (AGI) Certification and Consent to Disclosure of Tax Information” to the local FSA Office also as soon as possible.

• COC, AGI, and HEL/WC determinations must be in their appropriate statuses for the fiscal year of enrollment (FY23).
• Landowners of all types will be evaluated for landowner eligibility (i.e., appropriate COC, AGI, and HEL/WC statuses) by NRCS WV State Office (SO) Staff beginning Friday, April 28, 2023. Those that have not filed or are in an otherwise ineligible COC, AGI, or HEL/WC status on this date will be removed from consideration for FY23 funding.

Easement Mineral Policy

As part of the application process for Farm Bill conservation easement programs, NRCS WV will require a determination of mineral ownership and, if severed from surface ownership, will require one of the following methods of potential remediation:

1. Surface owner purchases the mineral interests for the easement area and submits supporting documentation (e.g., the deed for the mineral interests) as part of the application to NRCS WV. This supporting documentation must show the transaction has been recorded.
2. Development and recordation of legal instrument(s) that subordinate the mineral interests, and any rights for exploration or production of minerals that would result in surface disturbance, of the proposed easement area. A copy of the recorded document must be submitted to NRCS WV for review and approval as part of the application packet.
   • A geologic resource assessment that shows the likelihood of production of minerals on the proposed easement area is so remote as to be negligible may be required as supporting documentation for option number two (2) above. If necessary, a copy of this assessment must be obtained and submitted to NRCS WV for review and approval.

In addition to a determination of mineral ownership, the application and acquisition process for Farm Bill conservation easement programs in WV will also require a determination of whether the mineral rights are under lease. The following methods of potential remediation apply to mineral rights that have been leased:

1. Secure a signed and recorded release(s) of any leasehold(s), and its assigns, if any, and submit the documentation to NRCS WV for review and approval.
2. Develop and record an amendment to the lease(s), and its assigns, if any, that prohibits any mineral extraction from the surface of the easement area and prohibits the construction of any mineral extraction infrastructure on the easement area. A copy of the recorded document(s) must be submitted to NRCS WV for review and approval.
3. In the event that, following significant effort, a release(s) or an amendment(s) cannot be obtained, a draft affidavit of non-production regarding any leased mineral(s) can be submitted to NRCS WV for review and approval on an individual basis. This should be considered a last resort and attempts to acquire lease options one (1) or two (2) above should be sought first. If approved, the instrument must be signed and recorded at closing.
   • A geologic resource assessment that shows the likelihood of production of minerals from the proposed easement area is so remote as to be negligible may be required as supporting documentation for lease options two (2) and three (3) above. If necessary, a copy of this assessment must be obtained and submitted to NRCS WV for review and approval.

The exploration, development, mining or extraction of minerals, oil, gas, or any other hydrocarbon substance from NRCS WV conservation easements is prohibited. This means no oil or gas drilling can take place on conservation easements, nor can any oil or gas infrastructure (including roads) be placed on conservation easements which have been purchased using federal funds. Therefore, the aforementioned documents will be reviewed and their sufficiency in meeting ACEP requirements will be determined by NRCS WV.

Easement Monitoring

All closed easements must be monitored and entered in NEST prior to September 30, 2023. Easements closed in FY23 will be first monitored next year (i.e., FY24). Non-stewardship easements are those held in the name of the Eligible Entity and must be monitored by the Eligible Entity. NRCS may accompany the Eligible Entity at their request during an onsite monitoring. NRCS does not conduct its own monitoring of these easements unless NRCS determines it must exercise the United States Right of Enforcement or to review highly erodible cropland plans. NRCS Staff must contact Matthew Oliver, State Easement Specialist, if monitoring activities for a non-stewardship easement are potentially needed. NRCS Staff are responsible for monitoring stewardship easements annually. Stewardship easements are those held in the name of the United States.

The Annual Monitoring Worksheet (AMW) is available at the NRCS WV ACEP web page. NRCS Staff must use the AMW. Eligible Entities may use the AMW or they may create their own worksheet, but this worksheet must definitively answer all questions necessary to accurately report the condition of the easement. Please note there is a key question on the AMW asking whether the Conservation Plan, or the ALE Plan, as applicable, needs updated due to a change in ownership or agricultural management system. Photo documentation is encouraged as part of the monitoring report.

All monitoring worksheets (whether the AMW or an Eligible Entity’s equivalent) from Eligible Entities will be e-mailed to the Easements Inbox (NRCS.WVEasements@usda.gov) by the dates below. SO Easement Staff will enter the monitoring worksheets in the appropriate NRCS Easement Business Tool. To reduce workload at the end of the FY, monitoring worksheets should be submitted throughout the year. It is the responsibility of the Eligible Entity to ensure that all monitoring reports are submitted by these dates:

• All North Area FRPPs, ACEP ALEs, and RCPP ALEs should be monitored by June 30, 2023
  • This includes Hancock, Brooke, Ohio, Marshall, Wetzel, Tyler, Pleasants, Monongalia, Marion, Preston, Doddridge, Harrison, Gilmer, Lewis, Taylor, Barbour, Tucker, Upshur, Randolph, Pendleton, Grant, Hardy, Mineral, Hampshire, Morgan, Berkeley, and Jefferson Counties.
• All South Area FRPPs, ACEP ALEs, and RCPP ALEs should be monitored by August 4, 2023
  • This includes Wood, Ritchie, Wirt, Calhoun, Roane, Braxton, Clay, Nicholas, Webster, Pocahontas, Greenbrier, Monroe, Jackson, Mason, Putnam, Kanawha, Fayette, Raleigh, Wyoming, Cabell, Lincoln, Wayne, Boone, Logan, Mingo, McDowell, Mercer, and Summers Counties.

Follow-up actions will be addressed at a later date once all the monitoring worksheets are received.

Types of Reviews

Use this section to understand the monitoring schedules given below.

1. Offsite Review: requires a review of the governing documents (e.g., conservation easement deed, baseline document, conservation plan, final title policy, landowner authorizations, etc.), a review of the most recent aerial photography, and answer questions that are the same, or substantially similar to, questions 1, 3, and 4, found on the NRCS AMW.
2. Onsite Review: requires, at a minimum, a review of the governing documents (e.g., conservation easement deed, baseline document, conservation plan, final title policy, landowner authorizations, etc.), a review of most recent aerial photography, a field visit (contact landowner, or Eligible Entity for stewardship easements, in advance to coordinate), and answers to questions that are the same, or substantially similar to, all those found on the NRCS AMW. Include a map marking the location of any observations.

Monitoring Non-Stewardship Easements: FRPP, ACEP ALE, and RCPP ALE

FRPP easements (other than those funded during fiscal years 2006, 2007, and 2008) and ACEP ALE and RCPP ALE easements are considered “non-stewardship” easements because NRCS is not a grantee and holds only an enforcement right.

Non-Stewardship FRPP, ACEP ALE, & RCPP ALE

• Five-year cycle:
• Year 1: Eligible Entity Review.
• Year 2: Eligible Entity Review.
• Year 3: Eligible Entity Review.
• Year 4: Eligible Entity Review.
• Year 5: Eligible Entity Review.
• (Repeat five-year cycle).

Monitoring Stewardship Easements: ACEP WRE, WRP, GRP, EWP FPE, and 2006-2008 FRPP

FRPP easements funded during fiscal years 2006, 2007, and 2008, ACEP WRE, WRP, GRP, and EWP-FPE easements are considered “stewardship” easements because NRCS is a grantee on the deed of easement.

ACEP WRE, WRP, GRP, EWP FPE

• Pre-restoration: Onsite Review annually (NRCS Staff).
• Post-restoration: Year 1: Onsite Review (NRCS Staff).
• Post-restoration: Year 2: Onsite Review (NRCS Staff).
• Post-restoration: Year 3: Begin five-year cycle, Year 1:
• Year 1: Onsite Review (NRCS Staff).
• Year 2: Offsite Review (NRCS Staff).
• Year 3: Offsite Review (NRCS Staff).
• Year 4: Offsite Review (NRCS Staff).
• Year 5: Offsite Review (NRCS Staff).
• (Repeat five-year cycle).

Stewardship FRPP (FY 2006-2008)

• Five-year cycle:
• Year 1: Eligible Entity Review.
• Year 2: Eligible Entity Review.
• Year 3: Eligible Entity Review.
• Year 4: Eligible Entity Review.
• Year 5: Eligible Entity Review.
• (Repeat five-year cycle).

If you have any questions or need additional information, please contact Matthew Oliver, State Easement Specialist, at Matthew.Oliver@usda.gov, or Laura Smith, Assistant State Conservationist for Programs, at Laura.Smith2@usda.gov.