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Ms. Kerry Sullivan November 15,, 1993 Page 2 Moreover, it cannot be said that the conversion of the project site from its current use to the intended use will C14 constitute a "take" of the species as that term is defined under the California Endangered Species Act. It is true that under the Federal Endangered Species Act, which is not applicable here, habitat modification which prevents the recovery of the species by affecting its, reproductiveor behavioral habits ;can be considered a "take" However, no such similar standard is set forth in the California Endangered Species Act. Section. 86 of the California Fish & Game Code defines "take" as follows: "Take" means hunt, pursue, catch, capture, or kill. Specific facts could be advanced which might support an argument that loss of habitat constitutes a take, i.e., removing the nest, cutting down the nesting tree, etc. However, a reduction in foraging habitat is not within the definition of take and does not constitute a "take" (Section 86) Therefore, as to the alleged impact set forth in the EIR, we disagree that this impact can be considered significant in view of existing law. Furthermore, without evidence from the C15 Department of Fish & Game that Swainson's Hawks actually use this site for foraging, its comments or input on the DEIR are entitled to very little weight. (See CEQA Guidelines Section 15096(-d), a responsible agency's comments must be limited to its area of expertise and be supported by oral or written documentation.) In fact, :the evidence as presented in the EIR seems to show precisely the opposite; that the project will not have a significant effect on the Swainson's Hawk, and no mitigation is required. As to mitigation measure 4.2-5, we question the validity of the one to one replacement standard set forth in the draft C16 Department of Fish & Game guidelines. This mitigation` standard has absolutely no support under existing law; at the same time, it would greatly increase the costs of the project. we believe there is substantial evidence in the DEIR to show that ;the project will not have a significant effect on the Hawk, and, therefore, no mitigation is required. If the Department of Fish & Game continues ,to insist that mitigation is required, it should be required to submit substantial evidence of an impact, as well as a showing of a nexus between the required mitigation and the alleged impact. F:\LUS\99999\C\SULL1VAX.TRT /cvh/11/15/93/1