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. -I.' . - 6 RECONCILING CONFLICTS UNDER THE ENDANGERED SPECIES ACT .! tions led inescapably (0 the recognition that a similar problem might well exist for non federal actors as well. That is, if there were cir- cumstances in which "incidental taking" as- sociated with an otherwise lawful federal action was deemed acceptable, then logically it would seem that there might also be circumstances in which incidental takings associated with non- federal actions would likewise be acceptable. ESA, however, had no mechanism for exempt- ing such incidental takings. For endangered animals at least, taking was simply prohibited. The penalties for violating this prohibition in- cluded both substantial fines and imprison- ment. The fact that the Fish and Wildlife Ser- vice had rarely if ever enforced ESA against such violations was not particularly reassuring to those who might commit them; ESA's citizen suit provision created the risk that private litigants might enjoin a major project because of violations that the Fish and Wildlife Service would overlook. To address this matter, Congress added to the Endangered Species Act in 1982 a provision authorizing the Secretary to issue per- mits allowing the taking of protected species incidental to otherwise lawful non-federal ac- tions. The prerequisites to issuing such permits were substantially more elaborate than those for authorizing incidental takings associated with federal actions under Section 7, however. Most notably, they included a requirement to develop a "conservation plan" as the basis for any such permit. Thus was born the idea of "habitat conservation planning." I' SECTION lO(a)(l)(A) II The 1982 amendments to the Endangered Species Act create an exemption to the prohibi- tion against taking endangered species. They authorize the Fish and Wildlife Service to issue permits that allow the taking of endangered species incidental to the carrying out of other- wise lawful activities. The statutory require- ments that must be met in order for such a permit to issue are the following: (1) the impact of the taking must be mlnl- mized and mitigated to the maximum ex- tent practicable, (2) the effect of the taking must not be to reduce appreciably the prospects for survival and recovery of the affected species in the wild, and (3) the authorized taking must be in accord- ance with a conservation plan for which adequate funding is assured. Congress was persuaded that although the 1982 amendments relaxed ESA's taking prohibition, the actual effect of these amend- ments would be to provide more effective protection of endangered species. By tying the right to take endangered species incidentally to a definite plan, the adverse impacts of that taking could be mitigated, or offset, by as- surances of positive conservation action benefi- cial to the affected species. At the same time, the plan and the permit based upon it would provide a greater measure of certainty to development interests as to their future rights and responsibilities. Such plans could also en- tail a long-term resolution of the uses to which particulat parcels of land could be devoted. In- stead of conflicts over the use of a particular parcel each time a new owner proposed a project for the parcel, the permissible uses of the parcel could be established at the outset in the plan itself.