Confronted with environmental concerns about proposed border fencing, Homeland Security Secretary Michael Chertoff used his power Tuesday to waive dozens of federal laws to clear the way for building it.
Chertoff’s announcement followed a March 3 letter from a U.S. Fish and Wildlife Service official pointing out that U.S. Customs and Border Protection officials had abruptly spiked a compromise the agencies were working on to protect an extensive riverfront wildlife refuge affected by a Hidalgo County fence-levee project.
He signed two waivers Tuesday, one of them negating 37 environmental, historic preservation and land management laws to speed 470 miles of fence projects in Texas, California, Arizona and New Mexico.
The other, which waived 27 laws, was specific to the 22-mile project in Hidalgo County that Chertoff, on a visit there on Feb. 8, had touted as a win-win plan to shore up worn Rio Grande flood control levees while creating a barrier to unauthorized entry.
Under the 2005 Real ID Act, Congress granted homeland security the authority to waive legal restrictions that could impede efforts to secure the border.
Chertoff that year used waivers for 14 miles of fencing near San Diego, Calif. Last year, he waived regulations for two stretches of fencing in Arizona. But this is the first time he has used a waiver in Texas.
“Criminal activity at the border does not stop for endless debate or protracted litigation,” Chertoff said in a news release Tuesday. “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.”
Combining the fence with repairs to the levees had been suggested by local leaders fearful of potentially devastating flood damage, and the idea was quickly backed by U.S. Sens. John Cornyn and Kay Bailey Hutchison.
Hutchison on Tuesday praised Chertoff’s action, calling it a “responsible approach to exercise his legal authority to keep the agreement with Hidalgo County that serves the dual purposes of flood protection and border security.”
Hidalgo County Judge J.D. Salinas said the waiver was “responsive to the needs of our diverse border community.”
But the fence-levee plan is unpopular among environmentalists, who say it will cut off endangered cats and other wildlife from their sole water source in parts of the Lower Rio Grande National Wildlife Refuge. The patchwork of preserves stretches about 275 river miles and is considered one of the most biologically diverse havens in the United States.
“We need for the administration and Congress to hit the pause button here and stop this outrageous, accelerated quest to finish a wall that most people realize not only will not work but will do more damage than good,” anti-fence activist Jay J. Johnson-Castro said.
Eagle Pass Mayor Chad Foster, chairman of the Texas Border Coalition, issued a statement railing against what he said was “the largest waiver of U.S. environmental laws since the Trans-Alaska Pipeline, and we all know how well that worked out. Just ask the people of Valdez, Alaska.”
Cornyn was reserving comment until he could be fully briefed, said his spokesman, Brian Walsh.
U.S. Reps. Solomon Ortiz and Ciro Rodriguez, both Democrats, expressed outrage. Ortiz called the waivers draconian, and Rodriguez said Chertoff was “selectively ignoring laws and the will of Congress.”
In the March 3 letter to Greg Giddens, executive director of U.S. Customs and Border Protection’s Secure Border Initiative, the wildlife service’s Kenneth Stansell wrote: “We were very concerned that after months of consultations on a proposed project design and reaching consensus on a way forward that satisfies the needs of both wildlife and a secure border, CBP would unilaterally propose a completely new design and request an immediate response from the service.”
He added, “We will continue to work with CBP to develop mitigation alternatives. … We would like to document, however, that any proposed fence and/or levee segment that bisects lands within the Lower Rio Grande National Wildlife Refuge cannot be found compatible with the purposes for which the refuge was established. Therefore, we see the need for (homeland security) to utilize its authority … to waive the National Wildlife Refuge Administration Act of 1966.”
Interior Department spokeswoman Tina Kreisher said that the waiver didn’t mean an end to environmental considerations for the project and said homeland security was prepared to dedicate up to $50 million for mitigation projects.
“As they continue to work on this they’re continuing to do some of things like the environmental assessments that we normally do. It won’t come to a conclusion because they will be exempt from it,” she said