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.� 'The California Endangered Species Act (Fish and Game Code Section 2b50, et seq.) is inapplicable to the County of San Joaquin.` RESPONSE: Discretionary development projects reviewed and acted upon by San Joaquin County are not exempt from the requirements of the CESA. The Conditions of Approval relating to the Swainson's hawk were developed and adopted in order to comply with both the CESA and the appropriate sections of the California Public Resources Code.which implement the CESA. 5. APPEAL STATEMENT: Y 'The draft document entitled'Mitigation Guidelines for Swainson's Hawks in the Central Valley of California`has not been adopted by either the Fish and Game Commission or the Department of Fish and Game.' RESPONSE: The noted document was in a draft form in late 9990 when the EIR for the project was being prepared and has been subsequently revised, though not finalized. The document is only intended to provide guidelines to lead agencies and project sponsors to follow in developing adequate mitigation for the loss of Swainson's hawk habitat. It was not used as the basis for determining either the need for or the amount of off-site habitat necessary to mitigate the proposed project's potential impacts to the endangered species. The status of the noted document is, therefore, not relevant to the appeal. Y 6. APPEAL STATEMENT: The one-half-mile buffer is arbitrary and unenforceable. Construction activities are already under way by competitors on adjoining sites." RESPONSE: The condition was developed by the DFG in order to minimize potential disruption to Swainson's hawks that may be actively nesting on the site. The condition will not apply if there are no active nesting sites on the project site or if the DFG grants prior approval for an alternate means of mitigation. The condition applies only to this site and is not affected by construction activities on other property in the vicinity. 7. APPEAL STATEMENT: "Residential development projects did not cause the initial decline in the number of Swainson's , hawks in the Central Valley.' RESPONSE: The developer is not being asked to mitigate for past impacts to the Swainson's hawk; only for those impacts directly related to the approved project. The adopted Conditions of Approval contain the measures deemed satisfactory by the DFG to mitigate the project's impacts on the threatened species. BOS LETTER PAGE 3.