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in the 100 year floodway. This site has not been mapped by FEMA and it is not clear whether or not it is in the floodway. The purpose of this condition is to prohibit excavations where the findings for an excavation permit cannot be made. Text Amendment No. TA-92-16, which became effective April 8, 1993, requires soil from all fish pond projects to remain on site. Leaving the soil on site also provides for the site to be reclaimed for agricultural use if the fish ponds are not completed or are abandoned. It will require approximately 17,000 truck loads to remove the soil. At the Planning Commission meeting, the opposition argued that the applicant is only interested in selling the soil, and is not interested in creating fish ponds. The opposition made the following points: The existing road is not designed for heavy truck traffic. The applicant is currently under enforcement for the removal of soil from the site without a permit. The applicant removed soil for months while telling his neighbor that he had a permit. After the neighbor notified the County, the applicant avoided citation by excavating on weekends and with lights in the early morning. This removal of soil caused soil from the neighbor's property to erode onto the applicant's property. The applicant's family owns back hoe and excavating businesses in Galt and Wilton. Deep ponds are not necessary to improve available oxygen for the fish. An underground irrigation system is already in place. The applicant has not seriously attempted to farm. The Commission agreed with the opposition and indicated that this project appears to be a quarry rather than a fish pond. Members of the Commission also expressed concern that the fish ponds would not be feasible. Appeal Statement No. 2 (Condition 4.a): Swainson's hawk habitat protection, replacement, and management plan. Staff has not presented substantial evidence to prove that this project creates a significant impact on the Swainson's hawk foraging habitat. Staff relied upon the Department of Fish and Game's informal guidelines and the Department's determination of significant impact. However, the Department did not provide substantial evidence to substantiate its determination. In addition, the ponds will create habitat for other species, such as the giant garter snake. The ponds will provide water to irrigate the remaining 32 acres of this property, enabling the existing wetlands to remain wet for a longer period of time. This would increase the habitat for existing or potentially existing wetland plant and animal species.' Response The Department of Fish and Game, in its letter of August 20,1992, stated that the proposed project has the potential for significant impacts to the Swainson's hawk. The Department has information that indicates the presence of numerous Swainson's hawk nest territories within a five-mile radius of the project site. BOS LETTER PAGE 2