Border Wall Construction in Presidio Faces Legal Challenge

The Rivers and Harbors Act requires Corps approval for significant changes to levee systems. DHS initially waived numerous environmental and contracting statutes for the wall but omitted the 1899 law; on July 2 it amended its waiver to include it. The levee was upgraded after a catastrophic 2008 flood, and the IBWC owns it. Construction contracts, including a $1.2 billion award to Fisher Sand & Gravel, were already in place when the lawsuit was filed.

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DHS contended that Customs and Border Protection (CBP) is in “regular contact” with the Corps and IBWC and will conduct its own analysis once a wall design is received. The agency argued that an injunction limited to the 12.75-mile levee stretch would trigger “stop-work orders” and expose CBP to delay-related liability. DHS also cited the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, noting that past judicial challenges to waiver authority have been rejected.

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PMDD’s executive director John Kennedy said the new waiver “does not answer the flood safety concern” that prompted the suit and that the government is “acknowledging in court that it does not intend to comply with the Army Corps process.” Democracy Forward Foundation president Skye Perryman warned that the administration’s rapid waiver “rushes to waive the legal requirements” of the Rivers and Harbors Act, jeopardizing community safety.

Associated Press

• “When faced with our lawsuit raising the government’s non-compliance with the Rivers and Harbors Act and related safety concerns, of course DHS’s response was to rush to waive the legal requirements of that law too,” — Skye Perryman, President and CEO, Democracy Forward Foundation

Associated Press

• “The government is now acknowledging in court that it does not intend to comply with the Army Corps process and that interagency review remains unfinished,” — John Kennedy, Executive Director, Presidio Municipal Development District

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• “Once 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,” — DHS response (court filing)

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• “the 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,” — Senior CBP attorney (court filing)

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• “If the Court entered such an order, it would force CBP to issue ‘stop work orders’ 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,” — DHS (court filing)

Associated Press