BORDER FENCE: Environmental protections jeopardized by GOP amendments, critics say

Land Letter
October 1, 2009
by April Reese

New efforts by Republican lawmakers to bolster security along the U.S.-Mexico border could undermine the Department of Homeland Security's plans to mitigate environmental damage from the 700-mile fence authorized by Congress to stem the tide of illegal immigration and drugs from Mexico, critics of the fence project say.

One new provision, included in last week's Interior spending bill passed by the Senate, would prohibit federal funding for projects that "impede, prohibit or restrict" activities related to the operational control of the border.

Environmental groups see the language, attached as an amendment by Sen. Tom Coburn (R-Okla.), as potentially detrimental to efforts by DHS to carry out projects that would reduce the border fence's environmental impacts.

"The amendment is very troubling, as its language could be read broadly enough to prevent [the Department of the Interior] from raising legitimate concerns about border walls and demanding mitigation measures," said Scott Nicol, a co-founder of the No Border Wall Coalition, based in Texas.

Nicol said he is also worried about an amendment in the Department of Homeland Security spending bill added by Sen. Jim DeMint (R-S.C.) that would require DHS to complete 700 miles of double-layered fencing along the border by Dec. 31, 2010. Construction so far has included a mix of vehicle barriers, virtual fencing and stretches of physical fence. But DeMint maintains that such barriers do not meet a 2008 congressional mandate calling for 700 miles of reinforced, double-layer fencing (Land Letter, July 23).

"The American people were promised a secure border fence three years ago and it's time to make it happen," DeMint said. "Unfortunately, our government has dragged its feet for years and tried to use untested and unsecure 'virtual' fencing instead of actual, physical fencing. Our first priority must be national security, and we can only achieve that goal with secure borders."

Concerns over costs, impacts

DHS officials and others have argued that 700 miles of double-layered fencing is unnecessary and cost prohibitive. A Government Accountability Office report issued this month found that such fencing costs on average $3.9 million a mile.

In a Sept. 8 letter to Rep. David Price (D-N.C.), chairman of the House Homeland Security Appropriations Subcommittee, Rep. Ciro Rodriguez (D-Texas), whose district includes 785 miles of border, urged House leaders to purge the amendment from the final bill.

"Funding for additional border fencing is not our most urgent need on the border," Rodriguez wrote.

A spokesman for Price said Congress is working on a continuing resolution that would buy more time in settling differences between the two versions of the bill. The new fiscal year begins today.

In January, DHS received $50 million to offset the ecological harm done by the 700-mile fence, which was authorized by Congress under the 2005 Secure Fence Act (Land Letter, Jan. 22). Congress included another $40 million for mitigation in the Homeland Security appropriations bill.

But the department has yet to spend any of the money, despite a July 23 letter from 43 lawmakers urging Secretary Janet Napolitano to establish an environmental monitoring program along the border and move forward with mitigation efforts (Land Letter, July 30).
DHS's delay in implementing the mitigation measures has fueled criticism of the agency from environmental groups, land managers, private landowners and biologists who say the border fence could sever wildlife habitat and create a host of other environmental problems in the border regions of Texas, New Mexico, Arizona and California.

Matt Chandler, a spokesman for DHS, said the border fence mitigation fund "has not been used to date." The Interior Department is finalizing a list of projects that will be funded with the money. "Once projects have been identified, DHS will begin transferring funds as appropriate," he said. Until then, DHS will work with local, state and federal land managers to "minimize adverse impacts" from fence projects, he added.

Critics say using the mitigation fund to offset the damage from the fence is especially crucial given that some of the construction occurred without the protection of environmental laws, such as the Endangered Species Act and the Clean Water Act. In 2008, former DHS Secretary Michael Chertoff asserted his authority under the REAL ID Act of 2005 to waive 37 federal laws and all state, local and tribal laws to expedite construction of the fence along 500 miles of border.

New legislation

Rodriguez introduced his own legislation early last week aimed at forcing DHS to address the ecological impacts of fencing along the border. The "Healthy Borderlands Act of 2009," introduced Sept. 22, requires the Homeland Security secretary to develop a mitigation plan to begin to address the ecological impacts of border fencing.

Rogriguez's 23rd District of Texas, which stretches from El Paso to Eagle Pass, covers more length of the border than any other congressional district. About 29 miles of new fencing is planned for his district.

"Our borderlands are rich in natural and cultural resources, but they also can be places for illegal activity," Rodriguez, a member of the House Appropriations Committee, said in a statement.

"This bill is the next logical step in protecting the ecological integrity of our borders while also pursuing the measures necessary to secure our borders and defend our communities."

Rodriguez spokeswoman Rebeca Chapa said the bill would ensure the mitigation funds "are spent properly" and that a plan is put in place to mitigate the ecological effects of the fence.
Nicol of the No Border Wall Coalition said Rodriguez's bill is needed to push the federal government toward offsetting some of the damage caused by the border fence.

"As a result of former DHS Secretary Chertoff's Real ID Act waiver, which brushed aside federal laws including the Endangered Species Act, Clean Water Act, and National Environmental Policy Act, tremendous environmental damage that would normally be illegal has been done to our borderlands," Nicol said in an e-mail. "Representative Rodriguez's bill, if passed, will mark a first step toward mitigating some small portion of that damage. "

But Nicol warned that some of the damage is irreversible.

"It is important to recognize the fact that the extinction of species is permanent -- it is impossible to mitigate the loss of the ocelot or Sonoran pronghorn," Nicol said, referring to species in Texas and Arizona that wildlife managers believe will be harmed by the fence. "We should do what we can to lessen the border wall's impacts, but we must be aware that no amount of money will restore the borderlands to their pre-wall state."