Chertoff Waives 20 Federal Laws to Force the Border Wall through the San Pedro River

The No Border Wall coalition is deeply disturbed by Department of Homeland Security Secretary Michael Chertoff’s decision to waive 20 federal laws and overturn a judge’s order to resume construction of the border wall through the San Pedro Riparian National Conservation Area. We believe that his action is highly irresponsible and will result in permanent damage to the San Pedro River and increased deaths in the desert, while the number of people who enter the U.S. illegally will be unaffected. Secretary Chertoff’s actions, and the ill-conceived Real ID Act that permits him to unilaterally waive our nation’s laws, undermine the notion that the United States is based on the rule of law. He cannot suspend the law while claiming to defend the law.

When the Border Patrol and Army Corps. of Engineers began building the border wall through the San Pedro Riparian National Conservation Area, disregarding important federal statutes such as the National Environmental Policy Act and the Endangered Species Act, Defenders of Wildlife and the Sierra Club petitioned the court for a temporary halt to construction. On October 10th U.S. District Court Judge Ellen Segal Huvelle found that DHS had largely ignored the relevant laws, and that the hasty Environmental Assessment that had been produced without public comment was “inadequate.”

Rather than attempt to comply with our nation’s laws, Chertoff chose to “waive in their entirety… all federal, state, or other laws, regulations and legal requirements” related to the following 20 federal statutes:
National Environmental Policy Act
Endangered Species Act
Federal Water Pollution Control Act (aka Clean Water Act)
National Historic Preservation Act
Migratory Bird Treaty Act
Clean Air Act
Archaeological Resources Protection Act
Safe Drinking Water Act
Noise Control Act
Solid Waste Disposal Act
Comprehensive Environmental Response, Compensation, and Liability Act
Federal Land Policy and Management Act
Fish and Wildlife Coordination Act
Archaeological and Historic Preservation Act
Antiquities Act
Historic Sites, Buildings, and Antiquities Act
Arizona-Idaho Conservation Act
Wild and Scenic Rivers Act
Farmland Protection Policy Act
Administrative Procedures Act
This is a clear admission that the walls being built through the San Pedro Riparian National Conservation Area and other refuges along the border will run counter to these laws. There is no reason for Chertoff to waive laws that the wall will not violate.

In response to the court order, Secretary Chertoff said, "I have to say to myself, 'Yes, I don't want to disturb the habitat of a lizard, but am I prepared to pay human lives to do that?'” This dilemma is completely false. More than just the habitat of a lizard, federally endangered species such as the jaguar have been recorded in the San Pedro Riparian National Conservation Area in recent years. And as for human lives, the border walls built to date have not saved lives; instead, they have cost lives. No terrorist has been apprehended attempting to cross our southern border, and a wall would not stop them if they tried. The Border Patrol has repeatedly stated that border walls only slow crossers down by a few minutes. In its June 5, 2007 report Border Security: Barriers Along the U.S. International Border the Congressional Research Service stated, “The primary fence, by itself, did not have a discernible impact on the influx of unauthorized aliens coming across the border in San Diego.” The only measurable impact that the border walls have had is in the number of people who have died in the desert. In August of 2005 the General Accounting Office issued a report titled Illegal Immigration: Border Crossing Deaths have Doubled Since 1995. Walls do not stop crossers, they redirect them into ever more remote parts of the desert where hundreds die of exposure and dehydration every year. When Chertoff asks himself whether he is “prepared to pay human lives,” he has his answer in the GAO report.

No Border Wall calls on Congress to restore the rule of law by repealing section 102 of the Real ID Act. Secretary Chertoff has provided a glaring example of the danger inherent in giving an Administration appointee the power to overrule all of the laws that Congress has enacted. If this precedent is allowed to stand the rule of law may be suspended for any future “crisis” that catches the attention of politicians during an election cycle. Our nation needs to find real solutions to our immigration issues, instead of a wall that destroys vital ecosystems and costs billions of dollars and hundreds of lives, but will only provide a false sense of security.

Will the Last Free-Flowing River in Arizona Survive the Border Wall?

By Scott Nicol

One of the last undammed, free-flowing rivers in the American southwest, the San Pedro River and its surrounding watershed is one of the most biologically diverse areas in the United States. As it runs from Mexico through Arizona before joining the Gila River it passes through the confluence of four major ecosystems: the Sierra Madre and Rocky Mountains, and the Sonoran and Chihuahan Deserts. The river’s course is home to 84 species of mammals, 14 species of fish, 41 species of reptiles and amphibians, more than 100 species of breeding birds and an additional 250 species of migrant and wintering birds. It also contains archaeological sites representing the remains of human occupation from 11,200 years ago. This led Congress to designate the San Pedro Riparian National Conservation Area in 1988. The San Pedro was recognized by the National Audubon Society as its first Globally Important Bird Area, and designated as a world heritage natural area by the United Nations World Heritage Program.

Unfortunately for the San Pedro and the wildlife that depend upon it, it crosses the southern border of the United States. The Secure Fence Act of 2006 requires, “[at] least 2 layers of reinforced fencing, the installation of additional physical barriers, roads, lighting, cameras, and sensors” covering over 700 miles of the U.S. – Mexico border, including a span “extending from 10 miles west of the Calexico, California, port of entry to 5 miles east of the Douglas, Arizona, port of entry.” This section alone would be approximately 370 miles long, directly impacting the Cabeza Prieta National Wildlife Refuge, Buenos Aires National Wildlife Refuge, Organ Pipe Cactus National Monument, Coronado National Forest, and the San Pedro Riparian National Conservation Area.

The Department of Homeland Security prefers the term “pedestrian fencing” rather than border wall, as it is less apt to evoke images of Berlin in the soviet era. To date they have favored two wall designs, “Sandia” and “Bollard”. Under the Bollard design, offsetting double rows of 14’ to 17’ high steel pipe, approximately 6” in diameter, are set in 8.5” centers, and then filled with concrete. This construction requires trenching 5’ deep and 2’ wide along the entire length of the wall. Under the Sandia design, metal mesh panels are attached vertically to 16’ steel poles, and then 6’ panels are secured to the top of these at an angle of 45 degrees. The poles are anchored by a 12” wide by 4’ deep concrete footing along the length of the fence. In the San Pedro Riparian National Conservation Area, the Army Corps intends to utilize a “modified” Sandia design with steel pipes arranged horizontally to a height of 3’, and the remaining height consisting of mesh. Vehicle barriers constructed of scrap railroad ties will be placed in the riverbed and removed using cranes during seasonal flooding. How cranes will reach the riverbed each year during the monsoon season without causing tremendous damage and erosion has not been explained.

In its rush to add more miles to the border wall (and mollify certain Presidential hopefuls), the Department of Homeland Security has largely ignored federal environmental regulations. DHS Secretary Chertoff used the power granted to him under the Real ID Act to “waive in their entirety” the National Environmental Policy Act, Endangered Species Act, National Migratory Bird Treaty Act, Clean Water Act, and other laws to build walls near San Diego and in Arizona’s Barry M. Goldwater Range. In other parts of Arizona rushed Environmental Assessments have been produced with no public comment period that invariably find that building walls through the habitat of endangered species such as the Sonoran pronghorn will have “no significant impact”.

When this was attempted in the San Pedro Riparian NCA the Defenders of Wildlife and Sierra Club requested a stay in construction so that an Environmental Impact Statement, as required by the National Environmental Policy Act, could be conducted. Instead the Army Corps began bulldozing the next day. In response Defenders of Wildlife and Sierra Club filed suit, asking a federal court to halt construction until the Army Corps of Engineers fully complied with the law. Specifically, they argued that a regional Environmental Impact Statement is required for the entire length of the Arizona border wall, rather than limited Environmental Assessments for individual sections. In addition, a full Environmental Impact Statement must be carried out for the San Pedro River. Finally, to comply with NEPA there should be public participation in the EIS process. Until Chertoff signs a waiver DHS and the Border Patrol must obey the laws of the land.

On October 10 U.S. District Court Judge Ellen Segal Huvelle temporarily delayed construction of the border wall in San Pedro Riparian NCA. She accepted the argument that the government had failed to look at the cumulative effects of the sections of border wall that have been built or proposed. The failure of the government to acknowledge the potential impact of walls on other parts of the border “renders this environmental assessment inadequate,” she said. This victory in the fight to save our nation’s public lands from being ripped apart by the border wall was tempered by the fact that Secretary Chertoff has the ability to waive the laws that formed the basis for the lawsuit, effectively nullifying it. As Judge Huvelle said, “The law allows you to trump it. You have all the power,”

Secretray Chertoff was quoted as saying, ““Illegal migrants really degrade the environment. I’ve seen pictures of human waste, garbage, discarded bottles and other human artifact in pristine areas. And believe me, that is the worst thing you can do to the environment.” Apparently the secretary confuses a litter-free parking lot with viable habitat. Litter can be a problem for wildlife, but litter in an ecosystem is still far better than the bulldozing of that ecosystem. Animals can sidestep discarded bottles, but if their habitat is cleared of vegetation and bisected by an impermeable wall they cannot survive. If walls are built in the San Pedro watershed erosion and damming will permanently alter the riparian habitat. When asked about the likelihood of issuing a waiver for the San Pedro Riparian National Conservation Area to nullify DHS’ loss in court, Chertoff said, “I certainly reserve the right to use it again.” If building the border wall were beneficial to the environment Chertoff would not need to waive environmental statutes. The only reason to waive these important laws is because he knows that DHS’ actions will violate them.

BE HEARD!! Call for Public Comments about the Texas Border Wall

Comments about the construction of border walls in Texas are being accepted as part of the Environmental Impact Statement being prepared by Customs and Border Patrol. “Environmental Impact” is the impact on the human environment, as well as on wildlife and the quality of water and air. It is important that we raise all of our concerns during this public comment period. Please write, fax or e-mail your comments in by October 15, 2007. (See below for contact information.)

Here are a few ways to focus your comments:

· Destruction of wildlife habitat. The lower Rio Grande Valley has already been cleared of 95% of the brush. In an area considered one of the most biologically diverse in North America, any additional destruction of brush, including clearing 508 acres for construction of the wall, will have severe consequences for wildlife. How will wildlife survive with their habitat limited by a wall? How will they get to and from the river, find food, shelter, and potential mates in habitat dissected by a wall? In some cases like Starr County, the Rio Grande is the only source of water for wildlife. Any animal that encounters miles of wall will have to travel long distances for a very basic necessity, water.

· Endangered & rare species. The ocelot, jaguarundi and red-billed pigeon currently face the real possibility of extinction or extirpation. These are just a few of the endangered and rare species whose U.S. populations would certainly collapse with construction of the wall. The ability of rare species like the ocelot and jaguarundi to cross into Mexico helps keep wildlife populations healthy by maintaining a level of genetic integrity. Reduction of gene flow among or within populations will reduce the likelihood of long-term survival of these species. A formal Section 7 Consultation under the Endangered Species Act needs to be done.

· Violation of International Migratory Bird Treaty. If construction of the wall takes place during the spring, as stated in the Federal Register, many migratory and nesting birds will be affected. The clearing of brush will destroy thousands of nests, many with young birds in them. This is in direct violation of the International Migratory Bird Treaty.

· Impact of construction. What will be the impacts of construction? Of roads for vehicles and heavy equipment? Of lighting and transmission lines?

· Economic impact. Access will be cut off for wildlife enthusiasts interested in wildlife watching, canoeing, kayaking, and hiking along the river. Eco-tourism brings more than $125 million to the RGV annually from 200,000 eco-tourists, creating 2,500 jobs in the local economy. What are the economic impacts of limiting access to refuges, state parks, and other public and private parks and natural areas?

· Community impact. A wall could mean uprooting families from their homes and demolishing or cutting off access to historical buildings and community centers. How many people will lose their homes? What buildings will be destroyed? How will property owners gain access to their land? What will the presence of a wall do to property values? How will there be public access to cemeteries and historical and archaeological sites along the river? Will there be access in case of fire or other emergencies on the other side of the fence?

· Impact on agriculture. Farming is still the backbone of the economy in the Rio Grande Valley. How much agricultural land will be taken out of production by the wall? How will farmers gain access to their land? To their pumps and irrigation equipment? How will they bring farm equipment onto farmland behind a wall?

· Impact on flood control. All the walled areas are in a floodplain. Has the Army Corps or DHS coordinated with FEMA? How will the wall affect the flood control levees? Will the IBWC have access to the levees and input in the construction? Will future widening of the levees result in even more habitat loss on the south side (since the wall is on the north side)?

· Relations with Mexico and the rest of the world. Mexico will perceive the border wall as an insult. How will this affect the bi-national relations and cooperation? How will the border wall affect US relations with other countries and its standing in the world? By building a wall around our borders, what kind of example is the US setting of a free and open democratic society?

· Problems with the EIS. The EIS is geographically too limited. The EIS should look at total and cumulative impacts into the future. What about the impacts in other areas where a wall is proposed? How will the impacts of this initial proposed fencing change if the total amount of fencing called for by the Secure Fence Act is installed? What will be the environmental impacts of future needs of the wall such as maintenance and lighting?

· Inadequate public comment period. The public comment period is less than thirty days. For a project of this magnitude, the public comment period should be extended.


Submit your comments to Customs & Border Patrol by one of the following methods:

~ E-mail: RGVcomments@BorderFenceNEPA.com

~ Mail:
Rio Grande Valley Tactical Infrastructure EIS
C/O e2M
2751 Prosperity Avenue, Ste. 200
Fairfax, Virginia 22031

~ Fax: (757)282-7697

~ Electronically: http://www.borderfencenepa.com/ (Please note that they have repeatedly shut down this site.)

** Be sure to include you name, address and identify your comments as for the RGV Sector EIS.**

The deadline for public comments is October 15, 2007!

Conservation Groups Appeal Construction of Arizona Border Wall

The Sierra Club and Defenders of Wildlife issued the following statement today regarding the construction of the border wall in sensitive habitat along Arizona's southern border.

Conservation Groups Ask Federal Government to Consider
Border Fence’s Overall Impact to Wildlife, Public Lands in Arizona

WASHINGTON – The government needs to look at the overall impacts of building walls along Arizona’s border before constructing additional segments, according to a formal appeal filed today by two national conservation groups. The joint appeal to the Bureau of Land Management (BLM) and Department of the Interior asks that the government prohibit construction of a border wall within the San Pedro Riparian National Conservation Area (NCA) until it can comprehensively assess the environmental impacts on wildlife and protected federal lands in Arizona.

“The San Pedro National Conservation Area is an irreplaceable national treasure. Putting a fence right through the middle of it will rob America of one of its most important wildlife areas, but it won’t make America any safer,” said Jamie Rappaport Clark, executive vice president of Defenders of Wildlife. “The decision to build a wall in this unique area points out the absurdity of the government’s ill-conceived approach to securing America’s borders. Meanwhile, the government isn't even considering the cumulative impacts of these wall segments on wildlife and habitat. They haven’t taken a step back to look at the whole picture—and right now that picture looks bleak.”

The appeal by Defenders of Wildlife and the Sierra Club challenges the short-sighted decision to build a wall through the San Pedro NCA, which is one of the American Southwest’s most unique and biologically diverse areas. The San Pedro region has been designated as a World Heritage Natural Area by the United Nations World Heritage program. Some 250 species of migratory birds have been recorded in the area, which led to its designation as a Globally Important Bird Area by the National Audubon Society, American Bird Conservancy, and the international Commission for Environmental Cooperation. The San Pedro River is one of the last free-flowing rivers in the United States, and its natural beauty and diverse wildlife attract visitors from around the globe.

The appeal specifically challenges a BLM decision that permits construction of a wall and a new road within the San Pedro Riparian NCA. According to the BLM, the proposed fencing across the desert arroyos that feed the San Pedro River would cause erosion, sediment build-up and possibly even shift the entire riverbed. These changes could be disastrous for the cottonwood-willow woodlands and the wildlife that depend on this habitat. Construction of the wall could also physically isolate numerous wildlife species in Arizona that have populations in Mexico, including jaguar, ocelot, coati, gray and kit fox, badger, black bear, ringtail cat and unique subspecies of deer and squirrel.

The San Pedro wall is just one of six wall segments proposed since the beginning of the year along Arizona’s border with Mexico, including the San Pedro River, Organ Pipe Cactus National Monument and Buenos Aires National Monument. At least two of these segments are already under construction. Under the National Environmental Policy Act, federal agencies are required to consider alternatives and review the cumulative environmental impacts of different federal actions that are occurring at the same time in the same area. Such comprehensive assessments are necessary to determine how best to minimize the impacts of border security measures on wildlife, wildlands and border communities.

On September 24, the Department of Homeland Security announced that it would complete comprehensive Environmental Impact Statements concerning the cumulative impacts of planned border fence construction along much of the Texas border with Mexico. In Arizona, however, where construction on some segments of the fence has already begun, no such effort has been made.

“It’s an encouraging step in the right direction that the government has agreed to do a comprehensive assessment in Texas, but Arizona is the place where bulldozers are tearing up the borderland as we speak,” said Sean Sullivan, executive committee member for the Sierra Club Rincon (Southern Arizona) group. “Arizona’s border wall is already under construction in certain places, and the government has a responsibility to make sure its actions are thoroughly examined before it starts any new projects, especially in areas as sensitive as the San Pedro.”