The Trump administration, facing a lawsuit over its border wall plans in West Texas, responded by waiving the federal law at the center of the case for the wall project. This move, made 8 days ago, effectively prioritizes the rapid construction timeline and the interests of private contractors over the documented flood safety concerns of the Presidio community.
The lawsuit was filed last month by the Presidio Municipal Development District (PMDD), a local economic development group. The group argues that the proposed wall violates the Rivers and Harbors Act of 1899. PMDD contends that potential flooding from wall construction, particularly alterations to a local levee, will harm its property and initiatives. It warns that such flooding would threaten lives, homes, businesses, and infrastructure in the entire City of Presidio.
DHS had previously waived numerous environmental, cultural resource protection, and contracting laws to accelerate border wall construction in the Big Bend region. However, the 1899 law was initially excluded from these waivers. The agency's update 8 days ago specifically added the Rivers and Harbors Act to its list of waived regulations.
State Protects Capital
Skye Perryman, president and CEO of the Democracy Forward Foundation, representing the plaintiffs, noted the state's swift action. She stated, "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." This waiver allows construction to proceed without the legally required engineering approval from the U.S. Army Corps of Engineers, a process mandated when significant alterations are planned for a levee system.
Fisher Sand & Gravel, a company previously sued by the federal government for poor wall construction in South Texas, secured a $1.2 billion contract in March to build the section of wall through Presidio. The administration's actions ensure this massive contract can be executed with minimal regulatory hindrance, even as local officials sought basic information. Communications obtained through a Freedom of Information Act request reveal that in-depth discussions about the project between federal agencies had not occurred as of late March, despite contracts already being awarded.
John Kennedy, PMDD's executive director, highlighted the state's disregard for community safety. He 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."
Community Bears the Cost
The Presidio Flood Control Project levee, owned by the International Boundary and Water Commission, protects approximately 52 square miles of urban and agricultural land. This critical infrastructure underwent millions of dollars in upgrades after a catastrophic flood in 2008. The current wall plans, which include designs for a "reinforced concrete levee wall" with 30-foot steel bollard panels, directly threaten this protection.
Despite federal agencies claiming plans are "not yet finalized," internal communications contradict this assertion. A March 19 email from an IBWC engineer, 113 days ago, revealed a meeting about the project was canceled by CBP. An April 1 exchange, 100 days ago, showed a senior CBP attorney describing a specific design: "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," making no mention of undecided plans.
The government's legal defense repeatedly cites the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. This act grants the DHS secretary broad authority to waive legal requirements for border barrier installation, a power that has consistently been upheld in court, according to government documents. This legal framework serves as a state mechanism to bypass local concerns and environmental protections in favor of federal projects.
DHS has asked that any injunction halting construction be limited to the levee's 12.75-mile expanse, rather than the entire 175-mile Big Bend project. The agency argues that a broader injunction would force CBP to issue stop work orders, potentially making it liable for delay claims and costs incurred from contractor demobilization and remobilization. This concern for contractor profits and state liability clearly outweighs the flood risks faced by the Presidio community.
Perryman affirmed her group's resolve, stating they are "quite confident in the positions in our case and are looking forward to following up with a brief with the court later this week." The struggle continues against a state apparatus that systematically prioritizes capital accumulation over public safety and local autonomy.