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PC: 3-18-93 SA-92-41 The nexus is that the condition is directly related to the impact. If the Planning Commission chooses to uphold the appeal of DFG Condition 4(a), it must also modify the Initial Study to show that there will be no impact on wildlife, eliminate the mitigation measures, and eliminate the mitigation monitoring program. Department of Fish and Game 4(b): 4.b. Pursuant to Section 2081 of the State Fish and Game Code, a take permit for loss of Swainson's hawk habitat shall be obtained by the applicant, and a copy of the fully executed habitat management agreement with the DFG shall be submitted to the San Joaquin County Community Development Department prior to the issuance of any grading permits. Appeal_ St_ et�ment: 'There has been no evidence to indicate that a take will result from this project. To require a condition to obtain a take permit without this evidence is inappropriate. We request that this condition be removed.' Response to Appeal Statement: In its letter of August 20, 1992, the Department of Fish and Game stated: 'Any activity resulting in the loss of habitat, decreased reproductive success, or other negative effects on population levels of State-listed threatened or endangered species may be construed as 'take' by the DFG. Take of a threatend or endangered species may be allowed after consultation with DFG (Fish and Game Code Section 2081). The process involves a management plan entered into by the project proponent and the DFG which requires formalized mitigation to reduce the significance of the impact.' The language for this condition was suggested, reviewed, and approved by the Department of Fish and Game. As this is a State law and Fish and Game is the enforcing agency, the applicant must satisfy Fish and Game whether or not the County requires it. Under AB 3180, it is the County's responsibility, as Lead Agency, to identify the impact, require mitigation, and require a mitigation monitoring program. However, if the mitigation is requested by Fish and Game, responsibility for monitoring may be transferred from the County to Fish and Game. By including this condition, the County is assured that Fish and Game has taken responsibility for mitigation monitoring prior to the issuance of grading permits. ENVIRONMENTAL CONSIDERATIONS: On July 30, 1992, an Initial Study was prepared for this project. Due to comments from the Department of Fish and Game, the Initial Study was modified on December 11, 1992, and recirculated for a 30-day review through the State Clearinghouse. On Janaury 14, 1993, the review period was closed. The modified Initial Study includes mitigation measures for the loss of foraging habitat for the Swainson's hawk and a mitigation monitoring program. On the basis of that Initial Study, a Negative Declaration has been prepared. -18-