The Department of Homeland Security updated its legal waiver for Big Bend border wall construction on July 2, adding the Rivers and Harbors Act of 1899 to its list of exempted federal laws just eight days ago. The move came two weeks after the Presidio Municipal Development District sued the administration over flooding concerns tied to potential levee alterations for the $1.2 billion wall project.
DHS had already waived environmental, cultural resource protection, and contracting laws to speed construction in the West Texas region. It didn't include the 1899 law initially. Now it does. The waiver applies to the entire Big Bend region.
Skye Perryman, president of Democracy Forward Foundation representing the plaintiffs, said the government's response was predictable. "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," she said.
The Levee Question
The lawsuit centers on the Presidio Flood Control Project, a levee owned by the International Boundary and Water Commission that protects approximately 52 square miles of urban and agricultural land. The levee received millions of dollars in upgrades following a catastrophic 2008 flood. According to court documents, the Rivers and Harbors Act requires engineering approval from the U.S. Army Corps of Engineers when significant alterations are planned for such a levee system.
John Kennedy, PMDD's executive director, said DHS's new waiver doesn't address the core safety issue. "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," Kennedy said in a statement. "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 lawsuit argues that border agencies aren't coordinating as legally required with other government arms in potentially altering the local levee. It warns that failure to follow proper procedures could lead to "deadly" flooding. "The levees protect the entire City of Presidio and its residents, and flooding would threaten lives, homes, businesses, and infrastructure," the lawsuit states.
Design Uncertainty and Contract Awards
In early July, the Trump administration told the court that border wall plans in Presidio aren't 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. "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," the government said.
Border agencies outlined two potential designs in court documents. One consists of a reinforced concrete levee wall matching the levee's height, coupled with 30-foot steel bollard panels installed on top. Another design being explored is a traditional bollard wall closer to the river behind the existing levee.
Fisher Sand & Gravel was awarded the $1.2 billion contract in March to build the wall section through Presidio. The company was previously sued by the federal government over poor wall construction in South Texas.
Communication Gaps
Communications obtained by Marfa Public Radio through a Freedom of Information Act request reveal that in-depth discussions about the project between federal agencies hadn't occurred as of late March, even after construction contracts were awarded. On March 18, 114 days ago, 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 asking if they "have any information on this."
In the March 19 email, 113 days ago, 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 messages on April 1, 100 days ago, with IBWC repeatedly asking CBP to clarify the planned wall design. A senior CBP attorney 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 South Texas designs. The attorney didn't state that wall plans were still undecided, as the government claimed in recent court filings.
Government's Legal Defense
DHS is asking that if an injunction halting construction is granted, it be limited to the levee's 12.75-mile expanse rather than the entire 175-mile Big Bend wall project. The government is urging the court to reject the plaintiffs' injunction request entirely. DHS said in court documents that such an order would force CBP to issue stop work orders to all construction contractors in that sector, potentially leaving it liable for delay claims and costs from demobilization and remobilization.
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 for barriers and roads in high illegal entry areas along the border. "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," court documents say. 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. "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," she said.
Why This Matters:
The case tests the limits of executive waiver authority against local safety concerns and established infrastructure protections. The Rivers and Harbors Act has governed waterway and flood control modifications for more than a century, creating a framework that balances federal projects with engineering standards and interagency coordination. DHS's decision to add the law to its waiver list after being sued raises questions about whether statutory protections can be set aside retroactively when litigation threatens project timelines. For Presidio residents and businesses, the outcome determines whether millions in post-2008 levee upgrades will be protected by the engineering review process the law requires, or whether border security priorities override those safeguards. The $1.2 billion contract and potential contractor delay costs create fiscal pressure on both sides of the dispute.