By Erin Sherbert
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Tucked in the Hayward hills, past miles of new tract housing, is a swath of sloping grassland dotted with oak and bay trees, and clusters of grayish rocks. As it stands today, this land, Walpert Ridge, is an open space with winding dirt roads and cattle. An abandoned barn at the edge of the property is the only building in sight, giving the land a sense of vast emptiness. From the ridge, there is a spectacular view of San Francisco Bay, and urban life twinkles in the distance.
As serene as the ridge may seem, it has been a battleground between developers and environmentalists for more than two decades. The debate is typical: The developers want to build luxury homes on the land they own; the environmentalists say they are trying to protect the land because two endangered species live there.
But a recent lawsuit filed by two environmental groups against the U.S. government has elevated the debate beyond the ordinary, for two reasons. First, it could make Walpert Ridge a test case over what obligations the government has to preserve "critical habitat" for endangered species. Second, it raises the question of how much politics plays a role in approving such environmentally sensitive projects. Environmentalists say they have the documents to prove that political pressure, not science, drove the U.S. Fish and Wildlife Service to give the developers the green light.
Development company Hayward 1900 has grand plans for Walpert Ridge, where it plans to build an elementary school, 614 luxury homes, a park, and an 18-hole golf course on 1,642 acres. The development, called the Blue Rock Country Club, would boast a breathtaking view of the bay from almost every vantage point.
A number of developers have tried building houses on Walpert Ridge since the '80s, though they have been thwarted several times by voter referendums or environmental issues. In trying to meet environmentalists' demands, Hayward 1900 has scaled back the development from 1,800 homes to just over 600 and added more open space in the form of a park and a golf course.
The Blue Rock development has come under intense governmental scrutiny because it calls for filling in eight acres of wetlands, which requires a government permit.
Before it could award a wetlands permit to the Blue Rock developer, the government had to call in the Fish and Wildlife Service to craft a "biological opinion," a report that states whether the development would harm the endangered species there. Biologists spent more than a year studying the Alameda whipsnake and the California red-legged frog, the two endangered species that make their homes at Walpert Ridge.
Biologists issued a draft opinion in April 1999, asserting that the golf course -- more than the houses -- would pose a number of problems for the two species and ultimately challenge their survival. Yet when the final report was issued in December 1999, the agency reversed that opinion -- over the objections of its own biologists -- which allowed the Blue Rock development to proceed.
To block the golf course, two East Bay environmental groups -- the Hayward Area Planning Association and the Center for Biological Diversity -- filed a lawsuit last November, arguing that it would destroy critical habitat. Under the Endangered Species Act, federal agencies are forbidden from "adversely modifying" or destroying habitat necessary to an endangered species' survival. The suit is one of very few in California to call upon this little-used statute. The argument is rarely used in court because the Fish and Wildlife Service has yet to even assign critical habitat designations for about 90 percent of endangered species in California.
The Walpert Ridge case is also thought to be one of the first to use critical habitat as a legal argument involving private development, and the first such case involving Bay Area development. As such, environmentalists, government agencies, and developers are looking to this case to help define the government's responsibility toward endangered species, and the limits that could be placed on development.
In their court brief, the environmental organizations point out that Fish and Wildlife named land on the Blue Rock project site as critical habitat for the Alameda whipsnake in October 2000. In September 2000, the service also proposed critical habitat for the red-legged frog, which includes land on the Blue Rock site too. That designation should be finalized in March.
Though there is no dispute that the golf course will be built on sensitive ground, there is a vast difference in how the "critical habitat" statute is interpreted. Environmentalists believe the designation means that endangered species in those areas must be given added protections.
The Fish and Wildlife Service, however, argues that the critical habitat label by itself has little meaning and is trumped by the biological opinion the agency issues for each construction project.
How much weight the courts will give to critical habitats is unknown. "The interesting question in these cases is: Does the critical habitat designation in fact provide additional protections for an endangered species?" says Dan Rohlf, an environmental law professor at Lewis and Clark College. "The courts have never ruled on that issue. Any case that raises that issue is going to be a groundbreaking case."