By Scott Nicol
In 1996 the United States Congress called for the construction of “triple layered fencing” along the U.S.-Mexico border, beginning in the Pacific Ocean and extending 14 miles into California. This was to consist of parallel 10 to 15 foot high steel walls, with 50 feet of land in between graded and cleared of all vegetation, and the entire expanse lit by stadium floodlights. The Border Patrol also proposed filling in canyons and scalping mountains to give the new walls and road a level path. The California Coastal Commission determined in 2004 that these initial border walls would violate the Coastal Zone Management Act. Of particular concern was the damage that walls would do to the Tijuana River National Estuarine Research Reserve, the largest of the remaining California salt marshes, which harbors many endangered plant and animal species. The Sierra Club, Audubon Society, and other environmental groups also challenged the border wall in court. Construction came to a halt.
Congress responded by passing the Real ID Act of 2005, which gave the Secretary of Homeland Security the power to waive all laws that might slow construction of border walls, and also curtailed normal judicial review. President Bush’s Secretary of Homeland Security, Michael Chertoff, used this unprecedented power to “waive in their entirety” the Coastal Zone Management Act, the National Environmental Policy Act, the Endangered Species Act, the Migratory Bird Treaty Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act in order to resume border wall construction. The challenges brought by the California Coastal Commission and environmental organizations were thrown out when the laws that they were based upon were waived.
When Congress passed the Secure Fence Act in 2006, the power to waive laws granted by the Real ID Act carried over to all of the walls that the new law mandated. The Secure Fence Act called for over 700 hundred miles of new border wall extending from California into Arizona, New Mexico, and Texas, stopping just short of the Gulf of Mexico. Its path takes it through some of our nation’s most fragile and biologically diverse protected lands. Over the years former Homeland Secretary Chertoff issued 5 separate waivers under Real ID, setting aside 36 federal laws and, “all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of” those named laws. The waivers encompass the broad subjects of water, air, wildlife, and the environment, leaving few, if any, federal, state, or other environmental laws in place. In addition to brushing aside environmental protections, laws relating to farmland, archaeological and historic sites, religious freedoms, and Native American graves were also suspended.
Construction of the massive earthen berm to fill in Smuggler’s Gulch. Border Patrol photo.
With no need to obey environmental laws, the Department of Homeland Security (DHS) filled in the canyon known as Smuggler’s Gulch, south of San Diego, with over 2 million cubic yards of earth that had been ripped from adjacent mountaintops, and planted the border wall on top of the berm. With no regulations in place and no oversight by other agencies, DHS put little effort into erosion control, and the still bare slopes of the earthen dam threaten to wash tremendous amounts of dirt into the Tijuana River National Estuarine Research Reserve, which is only 600 feet away. Burying the estuary in sediment may raise its surface level enough to disrupt the twice-daily inundation of sea water upon which its fragile ecosystem depends.
To the east of Smuggler’s Gulch, in the rugged Otay Mountain Wilderness Area, DHS has blasted mountainsides in order to create access roads and level ground upon which to build the border wall. Before construction began the Environmental Protection Agency raised concerns that the dumping of tons of rubble, and the erosion that would follow, would clog the Tijuana River and violate the Clean Water Act. The Otay Mountain Wilderness Area was established in part to preserve some of the last stands of rare tecate cypress trees, the host plant for the even rarer Thorne’s hairstreak butterfly, which are found nowhere else in the United States. But with the Real ID Act’s waiver authority in hand, DHS has ignored the EPA’s concerns and our nation’s environmental laws, including the Otay Mountain Wilderness Act and the Clean Water Act. Border wall construction caused tremendous erosion, as predicted, and also involved cutting down more than 100 tecate cypress trees.
In July of 2008 the Organ Pipe Cactus National Monument received seasonal monsoon rains which resulted in the flooding of a number of washes that are bisected by the border wall. Storms of this type normally occur every 3 – 5 years in this part of the Sonoran desert. The Army Corps of Engineers had previously stated that the border walls built across washes would "not impede the natural flow of water.” In stark contrast to these claims, the National Park Service determined that the grates built into the base of the wall to allow for the passage of water were quickly choked with debris and sediment. The border wall then acted as a dam, with floodwaters up to seven feet deep piling up behind it. The floodwaters then followed the wall in search of an outlet, which they found at the Sonoyta port of entry, causing millions of dollars of damage to private businesses and government buildings.
Flood debris backed up by the border wall in Organ Pipe Cactus National Monument. National Park Service photo.
The U.S.-Mexico border consists of hundreds of miles of public and protected lands, which is habitat for scores of species. The border wall and patrol road slicing through these areas fragments the habitats of the animals that live here. Cut off from their usual range, populations may not have access to mates in other groups, a necessity for a genetically diverse, healthy population. Border walls also block animals from food and water sources, which leaves them especially vulnerable in times of drought. As the border wall funnels migrants into rugged, remote terrain and Border Patrol vehicles pursue them, they damage fragile ecosystems and disturb sensitive wildlife, like the bighorn sheep and the desert tortoise, both of which are endangered.
Endangered jaguars, which were almost entirely extirpated in the United States, have been photographed and even captured in Southern Arizona and New Mexico in recent years. In 1997, the jaguar was placed on the endangered species list in hopes of reviving U.S. populations. While their former range extends into all four southern border states, the individual animals which have been seen in Arizona likely came into the U.S. from Mexico, where larger populations live. With routes from Mexico almost completely sealed off by the border wall, establishing a healthy breeding population of jaguar in the U.S. may no longer be possible.
South Texas is home to ocelots and jaguarundi, both of which are listed under the Endangered Species Act. Agricultural and urban development have stripped these animals of 95% of their original habitat. Because so few of each species are left in the U.S., they need access to mates in Mexico to avoid inbreeding. The Lower Rio Grande Valley National Wildlife Refuge was created to provide them with sufficient habitat to survive, as well as offer a potential route to Mexico. Over the past 20 years, more than 90 million tax dollars and thousands of volunteer hours were spent piecing together and revegetating tracts of land along the Rio Grande in order to create this wildlife corridor. The border walls in South Texas now divide some of these refuge tracts, and cut others off from the Rio Grande and from Mexico. With the Endangered Species Act waived, the Department of Homeland Security has largely ignored the way that border walls fragment the ocelot and jaguarundi’s remaining habitat and seriously diminish hope for their recovery, or even survival.
Levee-border wall through the Lower Rio Grande Valley National Wildlife Refuge in Texas. Photo by Scott Nicol.
Before former Secretary Chertoff’s last Real ID Act waivers in April 2008, DHS prepared draft environmental impact statements and draft environmental assessments for the various sections of border wall, as mandated by the National Environmental Policy Act. In reviewing the draft environmental impact statement for the Rio Grande Valley, the Environmental Protection Agency found it to be “insufficient,” and recommended that DHS start the process over. The EPA reached the same conclusion, and made the same recommendation, when it reviewed the draft environmental impact statements and draft environmental assessments that DHS prepared for each the other border wall sections.
Following the waivers, which allowed DHS to disregard the National Environmental Policy Act, the agency abruptly ended the environmental assessment and environmental impact statement processes. Instead, they created a brand new category, the “environmental stewardship plan,” which was not governed by any federal legislation. These new reports recycle the bulk of the prior, “insufficient” reports, in many cases word-for-word, but have no established criteria or requirement for review from the EPA or the public. While they do include recommendations to minimize the wall’s environmental impact, most of which appeared in the earlier “insufficient” reports, there is no requirement that these be adhered to. In the instance of Smuggler’s Gulch, for example, revegetation and erosion control measures called for in DHS’ own report were not implemented.
One of DHS’ most absurd claims for the border wall is that it will actually be good for the environment because border crossers leave litter, make foot paths, and, in the states that do not have a river for a border, drive off road vehicles through sensitive habitat. This ignores the difference in scale between a dirt path that winds through the brush and an area 150 feet wide cleared of all vegetation, and 10 – 15 foot tall steel and concrete walls. The border wall’s destructive impact is made obvious by the Department of Homeland Security’s need to “waive in their entirety” our nation’s most important environmental laws. The only reason for DHS to waive laws is the knowledge that the border wall violates them. Litter can be a problem for wildlife, but the blasting, bulldozing, fragmentation, and large-scale erosion caused by border wall and Border Patrol road construction are much worse. Animals can sidestep discarded water bottles, but when their habitat is cleared of vegetation, flooded, or silted up, and blocked by an impermeable wall, they cannot survive.