Environmental Laws Waived to Build Border Fence

Congress gave the Secretary of Homeland Security authority to waive all legal requirements necessary to expeditiously install additional physical barriers and roads at the border to deter illegal activity.

"Criminal activity at the border does not stop for endless debate or protracted litigation," said Homeland Security Secretary Michael Chertoff. "Congress and the American public have been adamant that they want and expect border security. We're serious about delivering it, and these waivers will enable important security projects to keep moving forward. At the same time, we value the need for public input on any potential impact of our border infrastructure plans on the environment - and we will continue to solicit it."

One waiver applies to certain environmental and land management laws for various project areas in California, Arizona, New Mexico, and Texas, encompassing roughly 470 total miles.

It will facilitate additional pedestrian and vehicle fence construction, towers, sensors, cameras, detection equipment, and roads along the U.S.-Mexico border.

A separate waiver was signed for environmental and land management laws for the levee-border barrier project in Hidalgo County, Texas. Chertoff said this 22 mile project will "strengthen flood protection in the area while providing the Border Patrol with important tactical infrastructure." Completion on this project is expected by the end of 2008.

Army Specialist Michael J. Westall, 188th Engineer Company, applies a weld on the U.S. side of the fence at the U.S.-Mexico border June 7, 2007. (Photo by Senior Master Sgt. David H. Lipp courtesy U.S. Air Force)

Environmental groups are critical of the waivers, saying the projects will destroy federally protected wild lands. The region covered by the first waiver contains national parks, national monuments, national wildlife refuges, national forests, and wilderness areas.

Last year, Sierra Club and Defenders of Wildlife filed a federal lawsuit challenging the construction of fencing on the San Pedro Riparian National Conservation Area in Arizona.

A federal judge issued an injunction against construction in October but the Department of Homeland Security nullified the injunction with a waiver of environmental restrictions issued on October 26, 2007.

In March, the Sierra Club and Defenders of Wildlife asked the U.S. Supreme Court to hear their case asserting that such waivers are unconstitutional.

"The Bush administration's latest waiver of environmental and other federal laws threatens the livelihoods and ecology of the entire U.S.-Mexico border region," said Sierra Club Executive Director Carl Pope.

"These lands are part of America's wild legacy, and are of significant ecological, educational, historic, cultural, recreational and economic value to the United States and its people," said Pope.

Officials from the Rio Grande Valley's wildlife refuges and environmental advocates said the16 to 18 foot high combined fence-levee structure in Hidalgo County would make it impossible for endangered species like the ocelot to migrate.

Lone Star State Sierra Club Director Ken Kramer said, "The people in the Lower Rio Grande Valley of Texas understand the value of the wildlife corridor along the Rio Grande for both the environment and the ecotourism industry that is vital to the area's prosperity."

"Waiving longstanding laws that protect the environment and our cultural heritage to build a wall along the Texas-Mexico border would undermine decades of work to establish and preserve a vibrant wildlife corridor and would be a devastating blow to the eco-tourism that is so much a part of the Valley economy," Kramer said.

Homeland Security Director Chertoff defended his decision, saying that a "substantial portion of the project areas addressed by these waivers have already undergone environmental reviews." He said that in those areas where environmental reviews have not yet occurred, the department will conduct a review before any major construction begins.

"The department remains deeply committed to environmental responsibility, and will continue to work closely with the Department of Interior and other federal and state resources management agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized," said Chertoff.

The department also places a high priority on interaction with, and feedback from, local officials, landowners and community members about border infrastructure project plans, Chertoff said. Since May 2007, more than 600 individual landowners have been contacted and over 100 meetings with local officials, public open houses and town halls have been held along the southwest border.

The Department of the Interior, DOI, says "Many authorities and statutes that govern DOI land, resource and wildlife management do not accommodate approval of the DHS border projects."

The DOI has a legal obligation to manage and oversee Interior lands consistent with laws such as the Wilderness Act and the National Wildlife Refuge System Administration Act, and the agency said in a statement Tuesday that it cannot approve the border fences and walls and still obey these laws.

As a result, the DOI said it sees the need for the waivers.

"We will continue to work with them closely to protect environmental values and mitigate impacts," the DOI said. "Among other actions, we look forward to finalizing an agreement with DHS that documents their commitment to fund mitigation projects for threatened and endangered species valued up to $50 million.

Copyright Environment News Service (ENS) 2008. All rights reserved.