Two weeks after the Trump administration was sued over its plan for a border wall through the Big Bend region of West Texas, the administration responded by waiving the federal law at the center of the case for the wall project. That move came after the Presidio Municipal Development District, a local economic development group, filed suit last month and asked a federal judge to block construction while the case plays out in court.
Who Pays for the Wall
The lawsuit says the plan violates the Rivers and Harbors Act of 1899 and could bring flooding that would hit the people of Presidio first. The group argues that potential flooding, and the border wall in general, will harm its property and initiatives. Its filing says the levees protect the entire City of Presidio and its residents, and that flooding would threaten lives, homes, businesses, and infrastructure. That’s the part the agencies would rather wave away with paperwork.
Skye Perryman, president and CEO of the national nonprofit Democracy Forward Foundation, which is representing the plaintiffs, said, "When faced with our lawsuit raising the government’s non-compliance with the Rivers and Harbors Act and related safety concerns, of course DHS’s response was to rush to waive the legal requirements of that law too." John Kennedy, PMDD's executive director, said DHS's new waiver does not answer the flood safety concern that led his group to bring the case in the first place. Kennedy said, "The government is now acknowledging in court that it does not intend to comply with the Army Corps process and that interagency review remains unfinished. That is exactly why this case matters: no construction affecting Presidio’s levee or floodplain should be allowed before the legally required safety assessment is conducted."
The levee in Presidio, known as the Presidio Flood Control Project, is owned by the International Boundary and Water Commission and provides flood protection to approximately 52 square miles of urban and agricultural land in Presidio, according to court documents. The levee underwent millions of dollars in upgrades after a catastrophic flood in 2008. The Rivers and Harbors Act requires engineering approval from the U.S. Army Corps of Engineers when significant alterations are planned for a levee system. PMDD argues that interagency coordination hasn't happened, despite wall construction moving forward at a rapid pace.
What the Agencies Say
In early July, the Trump administration responded in court documents, saying plans for the border wall in Presidio are not yet finalized, despite the original construction timeline beginning as early as August. DHS said CBP is in regular contact with both the Army Corps and the International Boundary and Water Commission and intends to coordinate with them further when a wall design is in hand. The government said, "Once CBP receives a proposed design from the construction contractor, it will perform its own analysis and consult with the (boundary and water commission) and the United States Army Corps of Engineers."
Border agencies also said multiple designs for the border wall around the levee area in Presidio are still being considered. One design consists of a "reinforced concrete levee wall that is constructed to match the height of the levee, coupled with 30-foot steel bollard panels that are installed on top of the levee." Another design being explored is a traditional bollard wall closer to the river behind the existing levee.
Fisher Sand & Gravel, a company that was previously sued by the federal government over poor wall construction in South Texas, was awarded a $1.2 billion contract in March to build the section of wall that goes through Presidio. The legal fight comes after months of Presidio area officials trying to get more detailed information on the wall plan from federal border agencies. Communications obtained by Marfa Public Radio through a Freedom of Information Act request show in-depth discussions about the project between the federal agencies had not yet occurred as of late March, even after construction contracts had been awarded.
On March 18, Kennedy sent a letter to the IBWC and CBP asking specific questions about the impact of the wall on the Presidio levee. A day later, an IBWC engineer forwarded the letter to other engineers and a real estate staffer via email, asking if they "have any information on this." In the March 19 email, the engineer wrote that a March 17 meeting about the project was canceled by CBP and the agencies were still trying to reschedule for early April. IBWC and CBP attorneys went back and forth on their official responses to PMDD's inquiry days later on April 1, according to the documents obtained by Marfa Public Radio. In the exchange, IBWC repeatedly asked CBP to clarify the planned design of the border wall. A senior attorney for CBP answered that "the river side of the earthen levee will be replaced with a concrete levee wall with the bollard panels mounted to the top of the concrete wall," similar to wall designs in South Texas. Nowhere did the attorney state that wall plans were still up in the air, as the government said in its recent court filings.
The Waiver Machine
On July 2, DHS updated its waiver notice to add the Rivers and Harbors Act of 1899. The waiver applies to the Big Bend region of West Texas. DHS had previously waived a slew of environmental, cultural resource protection and contracting laws to expedite construction of the border wall in the Big Bend region, but it didn't initially include the 1899 law in its waiver.
As the lawsuit plays out, DHS is asking that if an injunction halting border wall construction is granted, it be limited to just the levee's expanse — 12.75 miles — instead of the entire 175-mile Big Bend area wall project. Still, the government is urging the court to reject the plaintiffs' request for an injunction. DHS said in court documents that if the court entered such an order, it would force CBP to issue stop work orders to all construction contractors in that sector, which in turn could leave it liable for delay claims and costs incurred from demobilization and remobilization of the contractors.
The government repeatedly cites the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which gave the DHS secretary broad authority to waive legal requirements to install barriers and roads in areas of high illegal entry along the border, and states that other legal challenges to those waivers have failed. Court documents say, "Over the past two decades, every judicial challenge to the Secretary’s exercise of his waiver authority has been rejected, including by multiple judges in this District." While the Big Bend Sector is the geographically largest along the border, it is also one of the least trafficked.
Perryman said her group isn't deterred by the government's response and will continue to fight for the PMDD and the safety of the Presidio community. She said, "We’re quite confident in the positions in our case and are looking forward to following up with a brief with the court later this week."