Friday, September 16, 2011

CBP Willing to Risk Flooding to Erect New Walls in Roma, Rio Grande City and Los Ebanos

By Scott Nicol

It was just over a year ago that the rising waters of the Rio Grande prompted the mandatory evacuation of Los Ebanos, Texas. Residents rushed to grab what they could before floodwaters cut off the town.

Before the flood, Customs and Border Protection (CBP) was pressuring the U.S. half of the International Boundary Water Commission (USIBWC) to approve the construction of border walls through Los Ebanos, as well as Rio Grande City and Roma, that could have worsened the flooding. CBP had even gone so far as to request that the US half of the International Boundary Water Commission act “unilaterally” and approve walls in the floodplain despite the objections of the Mexican half.

The plans for border walls drafted after the passage of the Secure Fence Act showed South Texas on the receiving end of 69 miles of border wall in 21 disconnected sections. The westernmost three sections, designated O-1, O-2, and O-3, were to be through the communities of Roma, Rio Grande City, and Los Ebanos.

In 2008 the US International Boundary Water Commission made it clear that any walls built along the Rio Grande must comply with US-Mexico treaties. The Real ID Act allowed the Department of Homeland Security (DHS), Customs and Border Protection’s parent agency, to waive all federal, state, and local laws, but not treaties. Walls built in the flood plain adjacent to the Rio Grande might deflect flood waters towards Mexico, causing flood damage to Mexican communities. Deflection might also cause the river to settle into a new channel farther to the south, which would effectively change the location of the US-Mexico boundary. Either of these would be a treaty violation.

In Cameron County and most of Hidalgo our treaty obligations meant that border walls could not be built between the existing flood control levees and the river, so walls were constructed on, in, or north of the levees. Those walls are, for the most part, finished. But unlike the downriver sections, Roma, Rio Grande City, and Los Ebanos do not have USIBWC flood control levees. The border walls in these three communities would therefore be in the flood plain.

Because of the wall’s likely flood impacts USIBWC rejected these three sections of border wall.

A few days after the 2008 elections CBP informed Representative Cuellar, whose district encompasses these communities, that these border wall sections were “on hold.” At the time Cuellar said, “This is a big victory.” He went on to tell the Associated Press, “We're hoping that this will allow us to work with the next president to find ... alternative methods for security."

Representative Cuellar’s constituents also hoped that that would be the last they would hear of plans to wall off their towns from the river, but in a May, 2010 report on the Secure Border Initiative (which includes both solid and “virtual” border walls) the Government Accountability Office stated, “CBP plans to construct an additional 14 miles of pedestrian fencing in the Rio Grande Valley sector.” These 14 miles are the combined Roma, Rio Grande City, and Los Ebanos sections.

Documents uncovered by the Sierra Club through a Freedom of Information Act request over the last year demonstrate that, in fact, the Department of Homeland Security and Customs and Border Protection continued to push for the construction of these walls, and were willing to disregard our treaty obligations and likely problems with flooding to do so.

A Customs and Border Protection “Fence Status Brief” dated April 27, 2009 reveals that to build the previously rejected walls CBP had decided upon a new plan. They would not change the design or location of the walls, or, better yet, give up on them entirely. Instead it says, “the new strategy involves developing a new floodplain model” and that, unlike the old model approved by USIBWC that “predicted noteworthy floodplain impacts from the fence,” “this model will demonstrate the impacts of the proposed fence will be minimal.”

The verb tense - "this model will demonstrate" - is important. It appears that CBP determined the outcome in advance, rather than commissioning an honest, unbiased model that would accurately describe the effects of structures built in the floodplain.

The “new flood plain model”, prepared by Baker Engineering, was completed in December 2009. Presented to CBP eight months after their fence status brief forecast its findings, its conclusion fit the earlier prediction precisely. The “noteworthy floodplain impacts” of building border walls in a floodplain that were predicted just a year earlier disappeared; instead, Baker now claimed that walls would have a “minimal effect on the Rio Grande floodplain.”

Baker decided this without even knowing what type of border wall design would be used. In 2008, CBP proposed a number of designs that were touted as either allowing floodwaters to pass through without being dammed up, or able to be removed before rising water reached them. USIBWC rejected all of these unrealistic schemes. In their 2009 report Baker modeled the border wall as an 18’ high, impermeable wall, with the specific design, whether concrete or steel, posts or mesh or slabs, to be determined later. Since CBP apparently told Baker what the outcome of their modeling would be before they began, it seems that such details were unimportant.

One striking conclusion of Baker’s “new flood plain model” was that in the communities of Roma, Rio Grande City, and Los Ebanos, border walls would “split” the flooding river. It states that for each wall segment, “Downstream of the flow split location, the flow continues in a north branch and a south branch on either side of the fence. The flow combines downstream of the point where the fence ends.”

This splitting is intentional. In the case of Rio Grande City, the wall was modeled with a 500 foot-wide opening in the middle specifically intended to split flood waters and send a portion of them north. Diverting water to the north of the border wall, into property on the US side of the river, means that less is deflected into Mexico. In this way CBP hopes to avoid flooding Mexican communities, and possibly pushing the Rio Grande into a new channel. Walls built in a floodplain will either deflect or divert floodwater, and the only real question is who is going to be on the receiving end.

Each of these wall sections begins upstream of a town and ends downstream of it. They begin close to the river, then the river and wall get farther apart before coming back together. So flood water that might not have reached properties where the proposed wall is farthest from the river will, with a wall in place, have “split” floodwaters channeled directly to them.

This is particularly striking for the Los Ebanos section. The community of Los Ebanos is nestled at the top of a deep bend in the river. The proposed wall would begin next to the Rio Grande at the top of this bend. While the river turns and heads due south, away from homes and the local school, the wall heads due east, directly towards them. That means that water that might have otherwise followed the river and flowed away from Los Ebanos will be split off by the wall, and be diverted into it. On the other side of town, instead of allowing the split flood waters to pour back into the Rio Grande, the wall makes a ninety degree turn, from east to north. Water that had been split off from the flooded river would therefore be bottled up in Los Ebanos.

A Customs and Border Protection Fence Status Brief dated January 20, 2010, written following the presentation of the “new flood plain model” to the Army Corps of Engineers and USIBWC, says that, “[acting USIBWC Commissioner] Ruth agreed no additional modeling is required and to ‘informally’ discuss the fence segments with the new Mexican IBWC Commissioner to determine if he will support.” The brief goes on to state that, “If it appears Mexico will continue to oppose fencing, CBP/DHS and IBWC/DOS [Department of State] to discuss potential unilateral decision to proceed with construction.”

A “unilateral decision” regarding the Rio Grande floodplain, taken by the US half of the International Boundary Water Commission in the face of opposition by the Mexican half, would be a serious treaty violation. The United States would essentially be challenging Mexico to try to stop us from building illegal walls.

On January 21, 2010, acting USIBWC Commissioner Ruth stepped aside, and Edward Drusina became the new commissioner. On his first day in office Commissioner Drusina wrote a letter to David Aguilar, the acting Commissioner of Customs and Border Protection. He stated that, after examining the model that CBP had commissioned, “the USIBWC is not in a position to approve construction of the O-1, O-2 and O-3 fence projects.”

Rather than accept the fact that walls built in the Rio Grande floodplain will have unacceptable impacts, CBP repeatedly pressed the USIBWC to reverse its decision. On February 2, 2010, Aguilar responded to Drusina, “we respectfully request that the USIBWC and Department of State reconsider your position and approve a unilateral decision to allow us to proceed with the design and construction of the O-1, O-2 and O-3 fence segments.”

On July 20, just one week after the flooding Rio Grande forced the mandatory evacuation of Los Ebanos, CBP presented a briefing to the State Department on these three border wall sections. During the briefing CBP claimed that they had already spent “+$1M in “design analysis” costs”, and said that, “we need IBWC and Department of State’s support for an unilateral decision to proceed with the fence construction.”

USIBWC stood firm, and on September 17, 2010, Comissioner Drusina again denied CBP permission to build new walls in the Rio Grande flood plain. CBP continued to push back, and a month later the new CBP Commissioner, Alan Bersin, wrote to USIBWC, asking that they reconsider and complaining about “Mexico’s recent opposition to border fencing regardless of hydraulic modeling results.”

Bersin’s October 2010 letter to USIBWC is the most recent document uncovered by the Sierra Club’s Freedom of Information Act request. The Club was told that to obtain newer documents another request would have to be filed. One has, but it may take months for us to begin receiving more documents.

We have learned through a recent conversation with representatives of the USIBWC and State Department that following the October 2010 letter Commissioners Bersin and Drusina held at least two meetings to discuss the Roma, Rio Grande City, and Los Ebanos walls. As a result of those meetings Baker Engineering was commissioned to develop yet another flood model. That model was completed last spring, and was reviewed by the Army Corps. of Engineers and USIBWC over the summer. It has not been released to the public.

While we hope that USIBWC continues to act in the best interests of the residents of these three communities and live up to its treaty obligations in the face of pressure from Customs and Border Protection, we have no guarantees. The discussions between these two agencies are being held behind closed doors, with landowners and community leaders kept out of the room. It may be months before we are able to see a copy of the latest flood model, and the only announcement that new border walls have been approved may be the arrival of construction crews.

US Representative Henry Cuellar, who represents Roma, Rio Grande City, and Los Ebanos in Washington, should ensure that his constituents are kept informed and given a seat at the table when walls that could channel flood waters into their homes and property are discussed. As the ranking member of the House Homeland Security Subcommittee on Border and Maritime Security, he has the power to demand that CBP hold open public hearings in each of these communities. Customs and Border Protection owes residents the decency of a face to face explanation, before they build new border walls that could put people’s lives and properties at risk.

Wednesday, September 14, 2011

Congressional Push Continues to Gut Environmental Protections Along U.S. Borders

The Center for Biological Diversity has issued the following press release. No Border Wall is in complete agreement, and urges rational members of Congress to reject McCain's amendment to the DHS appropriations bill, along with similar measures in the House, most notably HR 1505.

TUCSON, Ariz.— Under the guise of border security, Sen. John McCain (R-Ariz.) offered an amendment to the Department of Homeland Security appropriations bill today that would grant border-enforcement agencies free rein on federal lands within 300 miles of the U.S.-Mexico border. After criticism from colleagues in his own party that the 300-mile limit went far beyond the scope of border-enforcement activities, McCain scaled it back to 100 miles, and the amendment was added to the bill.

“Politicians are playing games with important border-security legislation at the expense of laws that protect clean air, water and endangered species,” said Randy Serraglio, a conservation advocate at the Center for Biological Diversity. “This amendment is unnecessary, unwanted and threatens significant harm to the wildlife, natural landscapes and people of the border region.”

The McCain amendment introduced today, similar to a bill proposed earlier this year by McCain and Sen. Jon Kyl (R-Ariz.), does not specifically name any laws, but its guarantee of unfettered access for border-enforcement agencies on federal lands effectively neutralizes protections afforded by the Endangered Species Act, Clean Air Act and Clean Water Act. Existing law permits essential border-security activities even in designated wilderness areas, and an existing memorandum of understanding between Homeland Security and the Department of the Interior provides for cooperation between land managers and border agencies.

“Despite repeated statements and congressional testimony from border-security agencies that they neither want nor need the authority granted in this amendment, radical anti-environment forces in Congress continue to push this hoax on the American people,” said Serraglio. “The losers in this game will be jaguars, ocelots, Sonoran pronghorn and residents of border communities that will no longer benefit from fundamental protections that allow them to live and thrive in a healthy environment.”

The nonpartisan Government Accountability Office concluded in a recent report that access to federal lands has not been limited in 22 of 26 sectors along the border, and that the only problems that have occurred in other sectors have been “minor delays.” Meanwhile, between 8,000 and 20,000 miles of wildcat roads have been blazed through a wilderness area in southern Arizona’s Cabeza Prieta National Wildlife Refuge, a majority of which, in recent years, has been caused by enforcement activities, according to a July report by the U.S. Fish and Wildlife Service.

“This amendment pretends to address a problem that does not exist,” said Serraglio. “Clearly, access to federal lands for border-security personnel is not a significant issue in achieving operational control of the border. At best, the McCain amendment is a case of political grandstanding.”

“The false premise inherent in this proposal is that border security and a healthy environment are somehow mutually exclusive,” said Serraglio. “The truth is just the opposite. It has been shown time and again that collaboration between land managers and security agencies enhances both border security and protection of the diverse and vibrant landscapes of the borderlands.”