The Trump administration responded to a lawsuit challenging its Big Bend border wall plan by waiving the very federal safety law at the heart of the case — a move critics say sidesteps legally required flood protections for a West Texas community. Eight days ago, on July 2, the Department of Homeland Security updated its waiver notice to include the Rivers and Harbors Act of 1899, which mandates engineering approval before altering levee systems that protect lives and property.
The Presidio Municipal Development District filed the lawsuit last month, arguing that border agencies aren't coordinating with other federal entities as the law requires before potentially modifying a local levee to construct the border wall. The group warns this could lead to "deadly" flooding in Presidio. Their lawsuit states, "The levees protect the entire City of Presidio and its residents, and flooding would threaten lives, homes, businesses, and infrastructure."
Waiving Safety Requirements After Being Sued
DHS had already waived numerous environmental, cultural resource protection, and contracting laws to speed border wall construction in Big Bend, but it didn't initially include the 1899 Rivers and Harbors Act. That changed two weeks after the lawsuit landed in court. Skye Perryman, president and CEO of Democracy Forward Foundation, which represents 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 the new waiver doesn't address the flood safety concern that prompted the case. He said in a statement, "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 at issue — the Presidio Flood Control Project — is owned by the International Boundary and Water Commission and protects 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.
Plans Remain Unclear Despite August Deadline
In early July, the Trump administration told the court that border wall plans in Presidio aren't 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 said multiple designs for the border wall around the levee area are still being considered. One 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 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.
Months of Unanswered Questions
The legal fight comes after months of Presidio area officials trying to get 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 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 wall's impact on the Presidio levee. A day later, an IBWC engineer forwarded the letter to colleagues 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 exchanged emails on April 1 about their official responses to PMDD's inquiry, according to 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.
Government Seeks to Limit Injunction Scope
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's also one of the least trafficked.
Perryman said her group isn't deterred by the government's response and will continue to fight for 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."
Why This Matters:
The case highlights the tension between executive authority to waive laws in the name of border enforcement and the protections those laws provide to local communities. The Presidio levee system protects 52 square miles of homes, businesses, and farmland — infrastructure built after a devastating 2008 flood at a cost of millions of dollars. The Rivers and Harbors Act exists precisely to ensure that alterations to flood control systems undergo rigorous engineering review before construction begins, protecting public safety through interagency coordination. When federal agencies can waive safety requirements in response to lawsuits challenging non-compliance with those same requirements, communities lose a critical check on projects that could threaten their lives and livelihoods. The outcome will set precedent for whether flood safety laws can be bypassed for border construction, even in areas with relatively low immigration traffic, and whether local governments have any recourse when federal projects threaten essential infrastructure.