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of this act. In addition, the act re- quires that "all other federal agen- cies shall... utilize their authorities in furtherance of the purposes of this Act." Section 7 also requires each federal agency to consult with the secretary to "insure that any action authorized, funded, or carried out by such agency, is not -likely to jeopardize the continued existence of any endangered spe- cies or threatened species, or re- sult in the destruction or adverse modification" of critical habitat of the species. Section 9, "Prohibitive Acts," makes unlawful a number of ac- tivities that affect endangered spe- cies, including the "taking" of any such species, without a permit. Section 10, "Exceptions," autho- rizes the secretary to issue permits to legalize acts prohibited by Sec- tion 9, "if such taking is inciden- tal to, and not the purpose of, car- rying out of otherwise lawful ac- tivity." Essentially, Section 10 al- lows the secretary to authorize tak- ings if appropriate mitigation can be provided. For instance, con- structing a dam that would de- stroy critical habitat of an endan- gered species, and therefore would be illegal under Section 9, might be permitted under Section 1 0 if the endangered species affected could be successfully transplanted to a new area where the species is not found. Section 1 0 also provides the legal authority for the numer- ous plans to conserve habitat. Tortured Implementation In 1973, no member of Congress could envision application of the Endangered Species Act as it has evolved. The congressional vision of "endangered species" was largely limited to eagles, whoop- ing cranes, and perhaps, grizzly 46 . FORUM for Appli~d R~s~arch and Public Policy , ; 00101& bears. There was no antIcIpation that the Endangered Species Act would be applied to species of flies, mussels, snails, or snakes. There was no vision that the recovery and delisting of species would be an extremely rare event. There was no vision that approximately 1,000 species would be listed as endan- gered within a quarter of a cen- tury, with the list still growing and no foreseeable limits on the num- ber of species that might be listed. There was no expectation that practically every county in the western United States woul<! ei- ther contain an endangered spe- cies or be affected by a listing. The number of species listed, however, is not the most remark- able aspect of implementation of the Endangered Species Act. Most suiking are those actions that take place after species are listed. If an endangered species resides tempo- rarily or permanently on a person's land, the federal government can place restrictions on the use of that land under Section 9 of the Act. In essence, the federal government acquires an ownership interest in private property through its abil- ity to restrict actions of the owner. In the Sweet Home decision,3 the Supreme Court upheld the secre- tary of the Interior's position that "taking" under the Endangered Species Act includes "harm," as stated in the act, and that harm includeS "significant habitat modi- fication or degradation," as inter- preted by the U.S. Fish and Wild- life Service. This means that anyone ad- , versely modifying the habitat of an endangered species, even on , .. . . one s own property, IS commIttmg an illegal act. The practical effects are either restrictions on actions on private property or requirements that anyone proposing such ac- tions must obtain a permit from the Fish and Wildlife Service. Ac- quiring a permit often means agreeing to mitigation require- ments. Mitigation requirements are normally the responsibility of the landowner and constitute an additional expense, either in land or money. The legal act of diversion of water from a stream in any state can be made illegal if there are endangered species in the stream. If endangered species-adult, young, or larvae scages-enter the diversion, this constitutes a taking under the Endangered Species Act and is illegal without a permit. Theoretically, the driver of an au- tomobile with an endangered fly on the windshield is in violation of the Endangered Species Act, unless some entity has obtained a permit for such a taking. A literal reading of Section 7 implies that it only applies to ac- tions by federal agencies, and this is still commonly misunderstood by many. But the fact remains, federal actions include permitting, funding, or otherwise allowing ac- tivities to take place that may af- fect endangered species. This pro- vision results in the broad appli- cation of the Endangered Species Act to numerous land and water management activities in the West. Practically every major river ba- sin in the West includes threatened or endangered fish or other aquatic species. The issuance of a permit for a dam, diversion works, or other construction in or near a river or wetlands triggers Endangered Species Act compliance. This pro- vision is coupled with a broad definition of impacts to endan- gered species. The Fish and Wildlife Service, __o__ __~. ____.__....-__ ,. '