The Department of Homeland Security (DHS) says that plans for the border wall in and around the City of Presidio haven’t been approved yet. In their response to a lawsuit brought by the Presidio Municipal Development District (PMDD), the agency revealed that contractors were still in the process of submitting designs for final consideration and that construction hasn’t begun “nor is it likely to begin imminently.”
This filing is notable in the ongoing saga over the border wall in the agency’s Big Bend sector, which has been marked by frustration over a perceived lack of transparency. Both local residents and advocacy organizations have repeatedly and unsuccessfully called for more information about its plans in the region — but the government’s response to this lawsuit suggests that the radio silence may be due to the fact that those plans are still in flux.
PMDD — an organization in Presidio that skims a small percentage of local sales tax to fund development-based projects and boost local businesses — filed their suit on June 17, warning that construction in and around the city’s aging levee system could result in “deadly” flash flooding and harm their economic interests in town. In their complaint, filed by legal counsel at D.C-based non-profit Democracy Forward, they explain that replacing the earthen slope of the existing levee with a concrete border wall could dramatically change how water interacts with the system.
The flow of water into the Rio Grande from runoff and tributary creeks and streams is regulated by a treaty with Mexico, making this a complex international legal issue. Contractor Fisher Sand & Gravel — the company awarded a $1.2 billion contract in March to build 61 miles of border wall from Ruidosa through Big Bend Ranch State Park — has found itself in legal trouble before over negotiating with the International Water and Boundary Commission (IBWC), the federal agency in charge of this treaty. The IBWC filed suit against the company in 2019, alleging that the company’s plans did not meet agency standards. Ultimately, the two parties settled and Fisher was required to put up a $3 million bond to ensure the company could quickly address damage to the wall in the event of flooding.
This time around, the financial stakes are different: the Fisher project in the Rio Grande Valley that sparked legal trouble was privately bankrolled by We Build the Wall, a conservative crowdfunding scheme that eventually landed a handful of its backers facing prison sentences for fraud. We Build the Wall raised over $25 million — chump change compared to the billions at Fisher and other DHS contractors’ disposal this time around. The company’s Presidio County wall project alone will cost over $19 million a mile, and the North Dakota-based firm was recently handed the government’s largest-ever up-front border wall contract for over $2.6 billion for a barrier system downstream in Terrell and Val Verde Counties.
The government’s response to the PMDD suit leans heavily upon DHS’s authority over a 1996 law called the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), which granted broad authority to waive laws that would slow down border wall construction. The PMDD suit asks the government for an injunction — an order from a judge to stop work on the wall while the issue is sorted out in court — on the basis of the River and Harbors Act of 1899, which did not appear in the government’s original list of waived laws for the Big Bend wall project, published in February.
At 8:45 a.m. on the morning the government’s response to the suit was due, DHS Secretary Markwayne Mullin authorized an amendment to the waiver adding the Rivers and Harbors Act. In their response, counsel for the government cautioned against trying to fight the waivers. “Every court to review a waiver under the IIRIRA has found it to be constitutional,” they wrote.
The government explained that there were a handful of border wall designs still in the running, including one “behind” the flood control system “that would not involve any construction on or require modification to the levees.” They also said that the government had over 100 miles of experience in building border wall on existing levee systems in the Rio Grande Valley. “Given the meticulous planning and design of the levee walls, it is unlikely that Plaintiff will be irreparably harmed,” they wrote.
Ultimately, the government argued, the two parties were haggling over 12.75 miles out of 510 in the Big Bend Sector — it made no sense for them for a judge to block construction of the entire stretch. They also claimed that these 12.75 miles were unlikely to see construction anytime soon. “Plaintiff claims that Defendants are ‘barreling ahead’ with construction, putting it at risk of eminent harm,” they wrote. “Not so. No construction activity has begun on the levees near Presidio, nor is it likely to begin imminently.”
