Two weeks after the Trump administration was over its plan for a border wall through the Big Bend region of West Texas, with plaintiffs claiming the plan violated a federal law, the administration responded by for the wall project.
The lawsuit was filed last month by the Presidio Municipal Development District, a local economic development group. PMDD claims that potential flooding, and the border wall in general, will harm the entity鈥檚 property and initiatives. The group is asking a federal judge to issue an injunction that would effectively stop construction of the wall in the region while the case plays out in court.
In the lawsuit, the district that border agencies are not coordinating as legally required with other arms of the government in potentially altering a local levee to build the border wall, which the group has said could lead to 鈥渄eadly鈥� flooding in the area.
鈥淭he levees protect the entire City of Presidio and its residents, and flooding would threaten lives, homes, businesses, and infrastructure,鈥� the lawsuit said.
The court case largely centers on an obscure federal law called the Rivers and Harbors Act of 1899. DHS a slew of environmental, cultural resource protection and contracting laws to expedite construction of the border wall in the Big Bend region, but it didn鈥檛 initially include that 1899 law in its waiver.
On July 2, the agency its waiver notice to add just that law.
鈥溾�奧hen faced with our lawsuit raising the government鈥檚 non-compliance with the Rivers and Harbors Act and related safety concerns, of course DHS鈥檚 response was to rush to waive the legal requirements of that law too,鈥� Skye Perryman, president and CEO of the national nonprofit , which is representing the plaintiffs, said in an interview.
The levee in Presidio, known as the Presidio Flood Control Project, is owned by the International Boundary and Water Commission and 鈥減rovides flood protection to approximately 52 square miles of urban and agricultural land in Presidio,鈥� according to court documents. The levee underwent millions of dollars in upgrades after a 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鈥檛 happened, despite wall construction moving forward at a rapid pace.
John Kennedy, PMDD鈥檚 executive director, said DHS鈥檚 new waiver does not answer the flood safety concern that led his group to bring the case in the first place.
鈥淭he government is now acknowledging in court that it does not intend to comply with the Army Corps process and that interagency review remains unfinished,鈥� Kennedy said in a statement. 鈥淭hat is exactly why this case matters: no construction affecting Presidio鈥檚 levee or floodplain should be allowed before the legally required safety assessment is conducted.鈥�
the Trump administration responded to the lawsuit in court documents, saying plans for the border wall in Presidio are , despite the original construction timeline beginning as early as August.
DHS said in its response that 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.
鈥淥nce 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,鈥� the government鈥檚 response said.
Border agencies also said in court documents that multiple designs for the border wall around the levee area in Presidio are still being considered. One design consists of a 鈥渞einforced 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.鈥� Also being explored, according to the court documents, is a traditional bollard wall closer to the river behind the existing levee.
Fisher Sand & Gravel, a company that was 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.
The legal fight comes after months of Presidio area officials trying to get more detailed information on the wall plan from federal border agencies.
Communications between those border agencies, obtained by Marfa Public Radio through a Freedom of Information Act request, show in-depth discussions about the project between the federal agencies had not yet occurred as of late March, even after construction contracts had been awarded.
On March 18, Kennedy 鈥� the PMDD head 鈥� sent a letter to the IBWC and CBP asking specific questions about the impact of the wall on the Presidio levee.
A day later, an IBWC engineer and a real estate staffer via email, asking if they 鈥渉ave any information on this.鈥� 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 on their official responses to PMDD鈥檚 inquiry days later on April 1, according to the documents obtained by Marfa Public Radio. In the exchange, IBWC repeatedly asks CBP to clarify the planned design of the border wall.
A senior attorney for CBP answered that 鈥渢he 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,鈥� 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.
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鈥檚 expanse 鈥� 12.75 miles 鈥� instead of the entire Still, the government is urging the court to reject the plaintiffs鈥� request for an injunction.
鈥淚f the Court entered such an order, it would force CBP to issue 鈥榮top work orders鈥� 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,鈥� DHS said in court documents.
The government鈥檚 response repeatedly cites the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 鈥� which gave the DHS Secretary broad authority to waive legal requirements to install barriers and roads 鈥渋n areas of high illegal entry鈥� along the border 鈥� and states that other legal challenges to those waivers have failed.
鈥淥ver the past two decades, every judicial challenge to the Secretary鈥檚 exercise of his waiver authority has been rejected, including by multiple judges in this District,鈥� court documents state.
While the Big Bend Sector is the geographically largest along the border, it is also one of .
Perryman said her group isn鈥檛 deterred by the government鈥檚 response, and will continue to fight for the PMDD and the safety of the Presidio community.
鈥溾�奧e鈥檙e quite confident in the positions in our case and are looking forward to following up with a brief with the court later this week,鈥� she said.
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