II 

111TH CONGRESS 

2D SESSION S. 3146 

To amend the Internal Revenue Code to provide a tax credit to individuals 

who enter into agreements to protect the habitats of endangered and 

threatened species, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 22 (legislative day, MARCH 19), 2010 

Mr. CRAPO (for himself, Mrs. LINCOLN, Mr. BURR, Mr. BROWNBACK, Ms. 

COLLINS, Ms. SNOWE, Mr. COCHRAN, Mr. CORNYN, Mr. TESTER, and 

Mr. RISCH) introduced the following bill; which was read twice and referred to the Committee on Finance 

A BILL 

To amend the Internal Revenue Code to provide a tax credit 

to individuals who enter into agreements to protect the 

habitats of endangered and threatened species, and for 

other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Endangered Species 

5 Recovery Act of 2010’’. 


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1 SEC. 2. ENDANGERED SPECIES RECOVERY CREDIT. 

2 (a) IN GENERAL.—Subpart B of part IV of sub3 chapter A of chapter 1 of the Internal Revenue Code of 

4 1986 is amended by adding at the end the following new 

5 section: 

6 ‘‘SEC. 30E. ENDANGERED SPECIES RECOVERY CREDIT. 

7 ‘‘(a) IN GENERAL.—In the case of an eligible tax8 payer, there shall be allowed as a credit against the tax 

9 imposed by this chapter for the taxable year an amount 

10 equal to the sum of— 

11 ‘‘(1) the habitat protection easement credit, 

12 plus 

13 ‘‘(2) the habitat restoration credit. 

14 ‘‘(b) LIMITATION.— 

15 ‘‘(1) IN GENERAL.—The credit allowed under 

16 subsection (a) for any eligible taxpayer for any tax17 able year shall not exceed the endangered species re18 covery credit limitation allocated to the eligible tax19 payer under subsection (f) for the calendar year in 

20 which the taxpayer’s taxable year ends. 

21 ‘‘(2) CARRYFORWARDS.— 

22 ‘‘(A) IN GENERAL.—If the amount of the 

23 credit allowable under subsection (a) for any 

24 taxpayer for any taxable year exceeds the en25 dangered species recovery credit limitation allo26 cated under subsection (f) to such taxpayer for 


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1 the calendar year in which the taxpayer’s tax2 able year ends, such excess may be carried for3 ward to the next taxable year for which such 

4 taxpayer is allocated a portion of the endan5 gered species recovery credit limitation. 

6 ‘‘(B) CARRYFORWARD OF ALLOCATION

7 AMOUNT.—If the amount of the endangered 

8 species recovery credit limitation allocated to an 

9 eligible taxpayer for any calendar year under 

10 subsection (f) exceeds the amount of the credit 

11 allowed to the taxpayer under subsection (a) for 

12 the taxable year ending in such calendar year, 

13 such excess may be carried forward to the next 

14 taxable year of the taxpayer. For purposes of 

15 this paragraph, any amount carried to another 

16 taxable year under this subparagraph shall be 

17 treated as allocated to the taxpayer for use in 

18 such taxable year under subsection (f). 

19 ‘‘(c) ELIGIBLE TAXPAYER.—For purposes of this sec20 tion— 

21 ‘‘(1) IN GENERAL.—The term ‘eligible taxpayer’ 

22 means— 

23 ‘‘(A) a taxpayer who— 

24 ‘‘(i) owns real property which contains 

25 the habitat of a qualified species, and 


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1 ‘‘(ii) enters into a qualified perpetual 

2 habitat protection agreement, a qualified 

3 30-year habitat protection agreement, or a 

4 qualified habitat protection agreement with 

5 the appropriate Secretary with respect to 

6 such real property, and 

7 ‘‘(B) any other taxpayer who— 

8 ‘‘(i) is a party to a qualified perpetual 

9 habitat protection agreement, a qualified 

10 30-year habitat protection agreement, or a 

11 qualified habitat protection agreement, and 

12 ‘‘(ii) as part of any such agreement, 

13 agrees to assume responsibility for costs 

14 paid or incurred as a result of imple15 menting such agreement. 

16 ‘‘(2) QUALIFIED PERPETUAL HABITAT PROTEC17 TION AGREEMENT.—The term ‘qualified perpetual 

18 habitat protection agreement’ means an agree19 ment— 

20 ‘‘(A) under which the taxpayer grants to 

21 the appropriate Secretary, the Secretary of Ag22 riculture, the Secretary of Defense, or a State 

23 an easement in perpetuity for the protection of 

24 the habitat of a qualified species, and 


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1 ‘‘(B) which meets the requirements of 

2 paragraph (5). 

3 ‘‘(3) QUALIFIED 30-YEAR HABITAT PROTECTION

4 AGREEMENT.—The term ‘qualified 30-year habitat 

5 protection agreement’ means an agreement— 

6 ‘‘(A) under which the taxpayer grants to 

7 the appropriate Secretary, the Secretary of Ag8 riculture, the Secretary of Defense, or a State 

9 an easement for a period of not less than 30 

10 years and less than perpetuity for the protec11 tion of the habitat of a qualified species, and 

12 ‘‘(B) which meets the requirements of 

13 paragraph (5). 

14 ‘‘(4) QUALIFIED HABITAT PROTECTION AGREE15 MENT.—The term ‘qualified habitat protection 

16 agreement’ means an agreement— 

17 ‘‘(A) under which the taxpayer enters into 

18 an agreement with the appropriate Secretary, 

19 the Secretary of Agriculture, the Secretary of 

20 Defense, or a State to protect the habitat of a 

21 qualified species for a specified period of time, 

22 and 

23 ‘‘(B) which meets the requirements of 

24 paragraph (5). 


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1 ‘‘(5) REQUIREMENTS.—An agreement meets 

2 the requirements of this paragraph if— 

3 ‘‘(A) the agreement is consistent with any 

4 recovery plan which is applicable and which has 

5 been approved for a qualified species under sec6 tion 4 of the Endangered Species Act of 1973, 

7 ‘‘(B) the appropriate Secretary and the eli8 gible taxpayer enter into a habitat management 

9 plan designed to— 

10 ‘‘(i) restore or enhance the habitat of 

11 a qualified species, or 

12 ‘‘(ii) reduce threats to a qualified spe13 cies through the management of the habi14 tat, and 

15 ‘‘(C) the appropriate Secretary ensures 

16 that the eligible taxpayer is provided with tech17 nical assistance in carrying out the duties of the 

18 taxpayer under the terms of the agreement. 

19 ‘‘(d) HABITAT PROTECTION EASEMENT CREDIT.— 

20 ‘‘(1) IN GENERAL.—For purposes of subsection 

21 (a)(1), the habitat protection easement credit for 

22 any taxable year is an amount equal to— 

23 ‘‘(A) in the case of an eligible taxpayer 

24 who has entered into a qualified perpetual habiVerDate Nov 24 2008 02:10 Mar 23, 2010 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3146.IS S3146

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1 tat protection agreement during such taxable 

2 year, 100 percent of the excess (if any) of— 

3 ‘‘(i) the fair market value of the real 

4 property with respect to which the quali5 fied perpetual habitat protection agreement 

6 is made, determined on the day before 

7 such agreement is entered into, over 

8 ‘‘(ii) the fair market value of such 

9 property, determined on the day after such 

10 agreement is entered into, 

11 ‘‘(B) in the case of an eligible taxpayer 

12 who has entered into a qualified 30-year habitat 

13 protection agreement during such taxable year, 

14 75 percent of such excess, and 

15 ‘‘(C) in the case of any other eligible tax16 payer, zero. 

17 ‘‘(2) REDUCTION FOR AMOUNT RECEIVED FOR

18 EASEMENT.—The credit allowed under subsection 

19 (a)(1) shall be reduced by any amount received by 

20 the taxpayer in connection with the easement. 

21 ‘‘(3) LIMITATION BASED ON AMOUNT OF

22 TAX.—The credit allowed under subsection (a)(1) for 

23 any taxable year shall not exceed the sum of— 

24 ‘‘(A) the taxpayer’s regular tax liability for 

25 the taxable year reduced by the sum of the 


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1 credits allowable under subpart A and sections 

2 27, 30, 30B, 30C, and 30D, and 

3 ‘‘(B) the tax imposed by section 55(a) for 

4 the taxable year. 

5 ‘‘(4) CARRYFORWARD OF UNUSED CREDIT.—If 

6 the credit allowable under subsection (a)(1) for any 

7 taxable year exceeds the limitation imposed by para8 graph (3) for such taxable year, such excess shall be 

9 carried to the succeeding taxable year and added to 

10 the credit allowable under subsection (a)(1) for such 

11 succeeding taxable year. 

12 ‘‘(5) QUALIFIED APPRAISALS REQUIRED.—No 

13 amount shall be taken into account under this sub14 section unless the eligible taxpayer includes with the 

15 taxpayer’s return for the taxable year a qualified ap16 praisal (within the meaning of section 

17 170(f)(11)(E)) of the real property. 

18 ‘‘(e) HABITAT RESTORATION CREDIT.— 

19 ‘‘(1) IN GENERAL.—For purposes of subsection 

20 (a)(2), the habitat restoration credit for any taxable 

21 year shall be an amount equal to— 

22 ‘‘(A) in the case of a qualified perpetual 

23 habitat protection agreement, 100 percent of 

24 the costs paid or incurred by an eligible tax25 payer during such taxable year pursuant to the 


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1 habitat management plan entered into under 

2 such agreement, 

3 ‘‘(B) in the case of a qualified 30-year 

4 habitat protection agreement, 75 percent of the 

5 costs paid or incurred by an eligible taxpayer 

6 during such taxable year pursuant to the habi7 tat management plan entered into under such 

8 agreement, and 

9 ‘‘(C) in the case of a qualified habitat pro10 tection agreement, 50 percent of the costs paid 

11 or incurred by an eligible taxpayer during such 

12 taxable year pursuant to the habitat manage13 ment plan entered into under such agreement. 

14 ‘‘(2) LIMITATION BASED ON AMOUNT OF

15 TAX.—The credit allowed under subsection (a)(2) for 

16 any taxable year shall not exceed the excess (if any) 

17 of— 

18 ‘‘(A) the regular tax liability for the tax19 able year reduced by the sum of the credits al20 lowable under subpart A and sections 27, 30, 

21 30B, 30C, and 30D, over 

22 ‘‘(B) the tentative minimum tax for the 

23 taxable year. 

24 ‘‘(3) CARRYFORWARD OF UNUSED CREDIT.—If 

25 the credit allowable under subsection (a)(2) for any 


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1 taxable year exceeds the limitation imposed by para2 graph (2) for such taxable year, such excess shall be 

3 carried to the succeeding taxable year and added to 

4 the credit allowable under subsection (a)(2) for such 

5 succeeding taxable year. 

6 ‘‘(4) SPECIAL RULES.— 

7 ‘‘(A) CERTAIN COSTS NOT INCLUDED.—No 

8 credit shall be allowed under subsection (a)(2) 

9 for any cost which is paid or incurred by a tax10 payer to comply with any requirement of a Fed11 eral, State, or local government. 

12 ‘‘(B) SUBSIDIZED FINANCING.—For pur13 poses of paragraph (1), the amount of costs 

14 paid or incurred by an eligible taxpayer pursu15 ant to any agreement described in subsection 

16 (c) shall be reduced by the amount of any fi17 nancing provided under any Federal or State 

18 program a principal purpose of which is to sub19 sidize financing for the conservation of the 

20 habitat of a qualified species. 

21 ‘‘(f) ENDANGERED SPECIES RECOVERY CREDIT LIM22 ITATION.— 

23 ‘‘(1) IN GENERAL.—There is an endangered 

24 species recovery credit limitation for each calendar 

25 year. Such limitation is— 


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1 ‘‘(A) for 2011, 2012, 2013, 2014, and 

2 2015— 

3 ‘‘(i) $300,000,000 with respect to 

4 qualified perpetual habitat protection 

5 agreements, 

6 ‘‘(ii) $60,000,000 with respect to 

7 qualified 30-year habitat protection agree8 ments, and 

9 ‘‘(iii) $40,000,000 with respect to 

10 qualified habitat protection agreements, 

11 and 

12 ‘‘(B) except as provided in paragraph (3), 

13 zero thereafter. 

14 ‘‘(2) ALLOCATION OF LIMITATION.— 

15 ‘‘(A) IN GENERAL.—The Secretary, in con16 sultation with the Secretary of the Interior and 

17 the Secretary of Commerce, shall allocate the 

18 endangered species recovery credit limitation to 

19 eligible taxpayers. 

20 ‘‘(B) ESTABLISHMENT OF ALLOCATION

21 PROGRAM.—Not later than 180 days after the 

22 date of the enactment of this Act, the Secretary 

23 of the Treasury, in consultation with the Sec24 retary of the Interior and the Secretary of 

25 Commerce, shall, by regulation, establish a proVerDate Nov 24 2008 02:10 Mar 23, 2010 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3146.IS S3146

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1 gram to process applications from eligible tax2 payers and to determine how to best allocate 

3 the credit limitation under subparagraph (A), 

4 taking into account the considerations described 

5 in subparagraph (C). 

6 ‘‘(C) CONSIDERATIONS.—In accepting ap7 plications to make allocations to eligible tax8 payers under this section, priority shall be given 

9 to taxpayers with agreements— 

10 ‘‘(i) relating to habitats that will sig11 nificantly increase the likelihood of recov12 ering and delisting a species as an endan13 gered species or a threatened species (as 

14 defined under section 2 of the Endangered 

15 Species Act of 1973), 

16 ‘‘(ii) that are cost-effective and maxi17 mize the benefits to a qualified species per 

18 dollar expended, 

19 ‘‘(iii) relating to habitats of species 

20 which have a federally approved recovery 

21 plan pursuant to section 4 of the Endan22 gered Species Act of 1973, 

23 ‘‘(iv) relating to habitats with the po24 tential to contribute significantly to the imVerDate Nov 24 2008 02:10 Mar 23, 2010 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3146.IS S3146

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1 provement of the status of a qualified spe2 cies, 

3 ‘‘(v) relating to habitats with the po4 tential to contribute significantly to the 

5 eradication or control of invasive species 

6 that are imperiling a qualified species, 

7 ‘‘(vi) with habitat management plans 

8 that will manage multiple qualified species, 

9 ‘‘(vii) with habitat management plans 

10 that will create adjacent or proximate habi11 tat for the recovery of a qualified species, 

12 ‘‘(viii) relating to habitats for quali13 fied species with an urgent need for protec14 tion, 

15 ‘‘(ix) with habitat management plans 

16 that assist in preventing the listing of a 

17 species as endangered or threatened under 

18 the Endangered Species Act of 1973 or a 

19 similar State law, 

20 ‘‘(x) with habitat management plans 

21 that may resolve conflicts between the pro22 tection of qualified species and otherwise 

23 lawful human activities, and 

24 ‘‘(xi) with habitat management plans 

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1 tection of a qualified species and military 

2 training or other military operations. 

3 ‘‘(3) CARRYOVER OF UNUSED LIMITATION.—If 

4 for any calendar year the limitation under paragraph 

5 (1) (after the application of this paragraph) exceeds 

6 the amount allocated to all eligible taxpayers for 

7 such calendar year, the limitation amount for the 

8 following calendar year shall be increased by the 

9 amount of such excess. 

10 ‘‘(g) OTHER DEFINITIONS AND SPECIAL RULES.— 

11 ‘‘(1) APPROPRIATE SECRETARY.—The term ‘ap12 propriate Secretary’ has the meaning given to the 

13 term ‘Secretary’ under section 3(15) of the Endan14 gered Species Act of 1973. 

15 ‘‘(2) HABITAT MANAGEMENT PLAN.—The term 

16 ‘habitat management plan’ means, with respect to 

17 any habitat, a plan which— 

18 ‘‘(A) identifies one or more qualified spe19 cies to which the plan applies, 

20 ‘‘(B) describes the management practices 

21 to be undertaken by the taxpayer, 

22 ‘‘(C) describes the technical assistance to 

23 be provided to the taxpayer and identifies the 

24 entity that will provide such assistance, 


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1 ‘‘(D) provides a schedule of deadlines for 

2 undertaking such management practices, and 

3 ‘‘(E) requires monitoring of the manage4 ment practices and the status of the qualified 

5 species. 

6 ‘‘(3) QUALIFIED SPECIES.—The term ‘qualified 

7 species’ means— 

8 ‘‘(A) any species listed as an endangered 

9 species or threatened species under the Endan10 gered Species Act of 1973, or 

11 ‘‘(B) any species for which a finding has 

12 been made under section 4(b)(3) of Endangered 

13 Species Act of 1973 that listing under such Act 

14 may be warranted. 

15 ‘‘(4) TAKING.—The term ‘taking’ has the 

16 meaning given to such term under the Endangered 

17 Species Act of 1973. 

18 ‘‘(5) REDUCTION IN BASIS.—For purposes of 

19 this subtitle, the basis of any property for which a 

20 credit is allowable under subsection (a)(1) shall be 

21 reduced by the amount of the credit so allowed. 

22 ‘‘(6) DENIAL OF DOUBLE BENEFIT.—No deduc23 tion shall be allowed under this chapter for any 

24 amount with respect to which a credit is allowed 

25 under subsection (a). 


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1 ‘‘(7) CERTIFICATION.—No credit shall be al2 lowed under subsection (a) unless the appropriate 

3 Secretary certifies that any agreement described in 

4 subsection (c) which is entered into by an eligible 

5 taxpayer will contribute to the recovery of a qualified 

6 species. 

7 ‘‘(8) REQUEST FOR AUTHORIZATION OF INCI8 DENTAL TAKINGS.—The Secretary shall request the 

9 appropriate Secretary to consider whether to author10 ize under the Endangered Species Act of 1973 

11 takings by an eligible taxpayer of a qualified species 

12 to which an agreement described in subsection (c) 

13 relates if the takings are incidental to— 

14 ‘‘(A) the restoration, enhancement, or 

15 management of the habitat pursuant to the 

16 habitat management plan under the agreement, 

17 or 

18 ‘‘(B) the use of the property to which the 

19 agreement pertains at any time after the expi20 ration of the easement or the specified period 

21 described in subsection (c)(4)(A), but only if 

22 such use will leave the qualified species at least 

23 as well off on the property as it was before the 

24 agreement was made. 


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1 ‘‘(9) RECAPTURE.—The Secretary shall, by reg2 ulations, provide for recapturing the benefit under 

3 any credit allowable under subsection (a) if the Sec4 retary, in consultation with the appropriate Sec5 retary, determines that— 

6 ‘‘(A) the eligible taxpayer has failed to 

7 carry out the duties of the taxpayer under the 

8 terms of a qualified perpetual habitat protection 

9 agreement, a qualified 30-year habitat protec10 tion agreement, or a qualified habitat protection 

11 agreement, and 

12 ‘‘(B) there are no other available means to 

13 remediate such failure.’’. 

14 (b) GAO STUDY.— 

15 (1) IN GENERAL.—The Comptroller General of 

16 the United States shall undertake a study on the ef17 fectiveness of the endangered species recovery credit 

18 under section 30E of the Internal Revenue Code of 

19 1986 (as added by this Act). 

20 (2) ISSUES TO BE STUDIED.—The study under 

21 paragraph (1) shall— 

22 (A) evaluate— 

23 (i) the effectiveness of the endangered 

24 species recovery credit in encouraging 

25 landowners to enter into agreements for 


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1 the protection of the habitats of endan2 gered and threatened species, and 

3 (ii) the degree to which such agree4 ments are effective in— 

5 (I) preserving the habitats of en6 dangered and threatened species, and 

7 (II) assisting in the recovery of 

8 such species, and 

9 (B) include recommendations for improv10 ing the effectiveness of endangered species re11 covery credit. 

12 (3) REPORTS.— 

13 (A) INTERIM REPORT.—Not later than 3 

14 years after the date of the enactment of this 

15 Act, the Comptroller General of the United 

16 States shall submit to Congress an interim re17 port on the study conducted under paragraph 

18 (1). 

19 (B) FINAL REPORT.—Not later than 5 

20 years after the date of the enactment of this 

21 Act, the Comptroller General of the United 

22 States shall submit to Congress a final report 

23 on the study conducted under paragraph (1). 

24 (c) CONFORMING AMENDMENTS.— 


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1 (1) Section 1016(a) of the Internal Revenue 

2 Code of 1986 is amended by striking ‘‘and’’ at the 

3 end of paragraph (36), by striking the period at the 

4 end of paragraph (37) and inserting ‘‘, and’’, and by 

5 inserting after paragraph (37) the following new 

6 paragraph: 

7 ‘‘(38) to the extent provided in section 

8 30E(g)(5).’’. 

9 (2) The table of sections for subpart B of part 

10 IV of subchapter A of chapter 1 of such Code is 

11 amended by inserting after the item relating to sec12 tion 30D the following new item: 

‘‘Sec. 30E. Endangered species recovery credit.’’. 

13 (d) EFFECTIVE DATE.—The amendments made by 

14 this section shall apply to taxable years beginning after 

15 December 31, 2010. 

Æ 


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