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Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations
rights-of-way and requesting that NRCS
clarify how off-site conditions are deemed suitable for the purpose of making ALE land eligibility determinations;
A comment requesting that NRCS
broaden the definition of access and the eligibility requirements so that air access can qualify; and A comment requesting additional clarification as to whether a farmer or rancher can participate in both ALE and Conservation Reserve Program CRP.
Response: For any proposed easement containing a CAFO, the confined area is a heavy use area that must be evaluated by NRCS to determine if the on-site or off-site conditions render the site ineligible and make a determination as to whether the land meets the required land eligibility criteria. This is a casespecific determination and broad categorization of land eligibility simply based on type of operation is not appropriate. NRCS has set forth in national policy, which is publicly available, the procedures and forms NRCS uses to make land eligibility determinations for ACEPALE, including assessing the potential of onsite and offsite conditions to undermine the purposes of ACEP.
Ultimately, land eligibility determinations are site-specific and rely upon programmatic and technical assessments based on criteria set forth broadly in national policy and more specifically at the State level. For more information, see: 440 CPM part 528 at https directives.sc.egov.usda.gov/.
Legal access to agricultural land easements is critical to the ability of the eligible entity, and NRCS, under its right of enforcement, to monitor and enforce the terms of the easement and ensure that program purposes are achieved. Effective monitoring and enforcement ultimately require ground inspection and verification. Access to an easement that can only be achieved by aircraft would require both the eligible entity and NRCS to maintain, in perpetuity, aircraft that can provide personnel access to monitor and land on the easement property and would require the landowner to maintain, in perpetuity, a landing strip or helipad on the property. NRCS does not maintain its own aircraft for easement monitoring purposes and cannot evaluate the safety and suitability of aircraft owned by the eligible entity or the landowners landing strip or helipad. All lands that do not have sufficient legal, physical access are ineligible to receive Federal funds under ACEP, including those that are only accessible by air.
The 2018 Farm Bill specifies that a farmer or rancher who owns eligible
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land subject to an agricultural land easement may enter into a CRP contract.
Determinations of land eligibility for enrollment in CRP are under the purview of FSA and we have therefore shared the comment with FSA. No change is made to the regulation in response to these issues.
ALE Planning NRCS received comment related to ALE planning and ALE plans as follows:
Comment: NRCS received comment related to ALE planning generally and some of them urging NRCS to require a grassland management plan for grasslands of special environmental significance given the higher environmental value of these easements.
Another comment recommended that NRCS continue to encourage planning on ALE easements, while a comment did not support how NRCS encouraged planning.
Response: The 2018 Farm Bill removed language requiring that ACEP
ALE easements enrolled under the 2018
Farm Bill be subject to an ALE plan, including grasslands of special environmental significance. However, in the Managers Report, the Managers encourage USDA and eligible entities to work with landowners entering into an ALE easement to undertake conservation planning activities on their land in order to maximize the environmental value of the protected land. Therefore, NRCS will continue to encourage planning on ACEPALE
enrollment, including grasslands of special environmental significance. No change is made to the regulation in response to this issue.
Comment: NRCS received comment strongly supporting the recognition ALE
plan as a measure that maintains or increases the agricultural viability of the land in the ranking criteria, and identified that the ranking criterion should strongly weight ALE plans for grasslands of special environmental significance and that a plan should be required for any application that is prioritized based on carbon sequestration or climate change resiliency goals. Another comment expressed that an ALE plan should not be recognized in the ranking criteria because it is no longer required by statute.
Response: As described in the preamble of the interim rule, NRCS
identified that the development and maintenance by the eligible entity of an ACEPALE plan could be a ranking consideration at the State level to prioritize applications from eligible entities. NRCS believes that conservation planning is the base upon
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which sound conservation stewardship originates. To eliminate support for planning would undermine the quality of stewardship that would be encouraged on lands in which the public provides a sizable financial investment. Additionally, as a ranking criterion this consideration does not prohibit eligible entities from being able to access program funding but instead acknowledges that eligible entities committed to long-term conservation planning are helping to ensure an agricultural land easement yields the greatest benefits for the landowner, conservation, and the public funds invested in that easement. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to the definition of the ALE plan, with some advocating for the removal of the ALE plan definition entirely because plans are no longer mandated by statute.
Another comment supported the definition of ALE plans and commended NRCS for clearly defining that the plan is developed by the eligible entity and not as a component of the deed. Comment also expressed support for limiting conservation plans to only highly erodible croplands.
Response: NRCS supports conservation planning as the cornerstone of land stewardship efforts.
NRCS retained the definition of the ALE
plan in the ACEP regulation. No change is made to the regulation in response to this issue.
ALE Program Requirements NRCS received comment related to ALE program requirements as follows:
Comment: NRCS received comment requesting clarification as to how NRCS
will determine if a landowner entity is compliant with AGI.
Response: NRCS uses the AGI
eligibility determinations made by the FSA. NRCS accesses such determinations through the agencies shared database services. No change is made to the regulation in response to this issue.
Comment: NRCS received comment related to the requirement that eligible entities must provide evidence of their financial capacity for transactions in which the non-Federal share does not include at least a 10-percent cash contribution from the eligible entity for payment of easement compensation to the landowner. Other comment requested removal of the requirement that the entity provide specific evidence of funds available for stewardship of the easement and suggested that entity eligibility requirements that apply to all ACEPALE transactions regardless of
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