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000871 of this act. In addition, the act re- quires that "all other federal agen- cies shalL.utilize their authorities in furtherance of rhe purposes of this Act." Section 7 aJso requires each federal agency ro consult with the secretary to <linsure that any action authorized, funded, or carried OUt by such agency. is not likely to jeopatdize 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 Aces," makes unlawful a number of ac- tivities that affect endangered spe- cies, including the "taking" of any such species. without a permit. Section 10, "Excepcions," autho- rizes the secretary to issue permits to legalize acts ptohibited by Sec- tion 9, "if such taking is inciden- tal to, and not the purpose of. car- rying out of otherwise lawful ac- tiviry." 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 u: endangered species" was largely limited to eagles, whoop- ing cranes, and perhaps, grizzly 46 . FORUM for Applied R~uarch and Public Policy 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 thar the recovery and delisdng of species would be an extremely rare even[. There was no vision that approximately 1,000 species would be listed as endan- gered within a quarter of a cen- tury, with the lisr srill growing and no foreseeable limits on the num- ber of species thar might be listed, There was no expectation that practically every county in the western United States would ei- ther contain an endangered spe- cies or be affected by a listing. The number of species lisred, however, is not the most remark- able aspect of implementation of the Endangered Species Act, Most striking are mose actions that take place afret species are lisred, 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 properry through its abil- ity to restrict actions of the owner. In the Sweet Home decision,] the Supreme Court upheld the seCte- tary of the Interior's position that "raking" 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 V,S. Fish and Wild- life Service. This means that anyone ad- versely modifying the habitat of an endangered species, even on one's own properry, is committing 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- men ts. 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 stages-enter the diversion. this constitutes a taking under the Endangered Species Act and is illegal wirhout a permit. Theoretically, rhe driver of an au- tomobile with an endangered fly on the windshield is in violation of [he 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 chat 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 me Wes[. Practically every major river ba- sin in the Wesr 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 werlands 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, ,...._____.___ I