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Feds waive enviro laws for new stretch of border wall

Despite a lawsuit from an Tucson-based environmental group, Homeland Security officials are setting aside more than two dozen federal laws and regulations to replace a two-mile section of border fence near Calexico, Calif., the agency announced Tuesday.

This is the second time the agency has used this authority in the last two months to bypass a range of environmental and procedural rules to begin building new border infrastructure. Among the laws sidestepped are the Endangered Species Act, Safe Drinking Water Act, Antiquities Act, and the Administrative Procedure Act.

The waiver allows DHS to begin the replacement of ad-hoc "legacy" fencing—made from Vietnam-era steel landing mats—with modern "bollard-style" barriers in the El Centro Sector, beginning from the port of entry near Calexico and running approximately two miles westward.

The project is similar to construction completed near Naco, Ariz., where Granite Construction replaced 7.5 miles of outdated "pedestrian fencing" at a cost of $44.7 million, or an estimated cost of $6 million per mile, according to an estimate given to the U.S. Government Accountability Office by CBP.

The existing 14-foot high landing mat fencing, originally installed in the 1990s, is "no longer optimal for Border Patrol operations" and will be replaced with bollards that rise 18-25 feet high, said a DHS spokesman in a filing with the Federal Register.

In addition, the agency will improve patrol roads in the area.

Replacing the fence in the El Centro Sector was one of the highest priorities for her agency, said Elaine Duke, the acting head of DHS. Duke said she determined it was "necessary" to exercise an authority granted to the secretary of Homeland Security in 2005 by Congress.

Under the 2005 REAL ID Act, Congress used an earlier 1996 Clinton-era law to give the agency broad authority to waive legal requirements that could impede the construction of barriers and roads along the border, allowing DHS to facilitate the construction of hundreds of miles of fencing and other infrastructure.

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Duke wrote that under the law, she waived "in their entirety, with respect to the contraction of roads and physical barriers" a host of environmental rules in the "project area."

In late July, the former DHS chief John Kelly — now serving as White House Chief of Staff — waived environmental laws and other regulations to plan for the construction of new prototype walls near San Diego, beginning from the Pacific Ocean and running 15 miles east to "Border Monument 251."

Environmental groups have long objected to agency's previous use of environmental waivers, and, in April the Center Biological Diversity, along with U.S. Rep. Raúl Grijlava, filed suit to force the Trump administration to consider the environment impact of border enforcement and the construction of a wall.

Last week, the Tucson-based group expanded their lawsuit to include Kelly's waiver, arguing that the secretary's authority "no longer applies."

The waiver authority was created for border wall construction under the 2006 Secure Fence Act, which mandated the agency to build 700 miles of border fence, but "Homeland met this mandate several years ago" to build 625 miles of border walls and barriers, the group said.

“The REAL ID waiver authority no longer applies. Homeland Security doesn’t have perpetual power to toss crucial conservation laws for any border project it wants until the end of time," said Brian Segee, senior attorney with the Center for Biological Diversity.

"The Trump administration is willing to ignore the law and destroy the environment in its rush to build a destructive, divisive wall that no one else wants," said Segee. "Like the waiver at issue in our lawsuit, this waiver is illegal and unconstitutional. The authority provided by Congress a dozen years ago in the REAL ID Act was intended to expedite border fence construction that’s already been completed. It doesn’t give DHS a roving, perpetual authority to cast aside laws."

Before this year, DHS used environmental waivers only five times, all of them in a three year span from 2005 to 2008.

The Sierra Club also objected to Trump administration's plan, saying that the waivers "roll back protections for public health, farmland, animals, public participation, and environmental safeguards.

"Waiving important public health and environmental safeguards leaves border communities without the protections that other Americans count on every day," said Dan Millis, a coordinator for the group's borderlands program. "Wiping away decades-old laws along the border achieves nothing more than unnecessarily harming local communities, wildlife, and wild places. It is irresponsible for the Trump Administration to ignore this nation’s most effective laws to deliver an extremist agenda."

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"Building more walls along the U.S.-Mexico border, and waiving environmental, historic, and cultural safeguards in order to do so, is a terrible idea," Millis said.

In the announcement, Duke wrote that Border Patrol agents had apprehended more than 19,400 people in the sector last fiscal year. However, the number of apprehensions in the El Centro Sector have, like the rest of the Southwest border, declined year over year since 2000. 

Overall, total apprehensions by Border Patrol agents have dropped nearly 75 percent from the fiscal year of 2000 when nearly 1.7 million people were apprehended by Border Patrol agents, according to agency statistics. 

In El Centro Sector, Border Patrol agents apprehended just over 238,000 in the fiscal year of 2000. Even after a dramatic increase in apprehensions from 2015 to 2016, the total number of apprehensions has declined nearly 91 percent since 2000. 

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

A section of fence near Yuma.