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to this significant cumulative impact. C13 The EIR preparers did not conduct surveys to determine if the site is used by foraging Swainson's hawks but instead based -their analysis on the substantial amount of information on Swainson's hawks occurrences and known foraging behavior in the project area (City of Stockton, 1990). The biological subconsultants did survey the site for potential Swainson's hawk nest sites. The project site is within seven to ten miles foraging distance of at least 19 breeding pairs of Swainson's hawks. Swainson's hawks forage over large areas on a daily and seasonal basis. Foraging ranges can extend over 15,000 acres so that every field within the foraging range of an individual Swainson's hawk is not used daily. See the response to Comment 2 regarding the determination of a cumulative significant impact on Swainson's hawks. C14 The California Endangered Species Act (CESA) defines take to include hunting, pursuing, catching, capturing, killing, or attempting such activity. Unlike the Endangered Species Act (ESA), the CESA does j not include the act of "significant habitat modification or degradation" in its definition of take. In practice, however, the DepartmentofFish and Game has interpreted the take prohibition in the CESA to include °destruction of nesting and foraging habitat necessary to maintain the species'; reproductive effort." The EIR preparers have concluded that the loss of 40 acres on the project would not constitute a take under the act because a direct nexus cannot be made between the loss of this 40 acres of habitat and the effect on a pair of Swainson's hawks. Instead, as mentioned under comment C 12, the loss of 40 acres of suitable habitat contributes to a larger significant cumulative impact under CEQA, which could be considered a take under the act. 9 C15 As mentioned above, the significance determination was not made on the basis that a'take would occur as defined under the CESA. The determination that the project contributes to a significant cumulative impact regionally was made by the EIR preparers based on the location of the numerous nesting territories, suitable habitat on the project site, and the continued loss of foraging habitat throughout San Joaquin County. C16 The mitigation measure is being revised to read as follows: In carrying out the operations of the project, the applicant shall take no actions that violate the provisions of the California Endangered Species Act or any other laws or regulations pertaining to the protection of the Swainson's hawk. Compliance with said laws shall be the sole responsibility of the applicant, and the applicant agrees to indemnify, defend, and hold the County harmless from and against any claim or action by affected State agencies as to the project's compliance with said laws. C17 It is not reasonable and not consistent with CEQA to expect the Department of Fish and Game to conduct mitigation for impacts caused by others. ER -93-1 -19- (11-23-93)