Kelly waives dozens of laws to make way for bor­der wall

Congress is urged to deny Trump fund­ing

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DINAN

The ad­min­is­tra­tion said Tues­day that it will have to waive fed­eral law pro­tect­ing bald and golden ea­gles as well as dozens of other iconic en­vi­ron­men­tal and Amer­i­can Indian pro­tec­tion statutes in or­der to begin build­ing Pres­i­dent Trump’s bor­der wall in San Diego this year.

For­mer Home­land Se­cu­rity Sec­re­tary John F. Kelly, who started work this week as White House chief of staff, signed waivers for three dozen laws, say­ing Congress has given his depart­ment ex­emp­tions when a crit­i­cal bor­der se­cu­rity mis­sion is at stake.

In this case, that means waiv­ing the Ea­gle Pro­tec­tion Act, the En­dan­gered Species Act, noise con­trol statutes, the An­tiq­ui­ties Act, the Na­tive Amer­i­can Graves Pro­tec­tion and Repa­tri­a­tion Act, and the Re­li­gious Free­dom Restora­tion Act.

Home­land Se­cu­rity of­fi­cials say the ex­emp­tions are needed so the depart­ment can re­place out­dated fenc­ing along the U.S.-Mex­ico bor­der in South­ern Cal­i­for­nia and begin test­ing pro­to­types this year for con­struc­tion of the

bor­der wall, a cen­ter­piece of Mr. Trump’s pres­i­den­tial cam­paign.

Of­fi­cials in­sisted they will do what they can to com­ply with laws, though they are no longer re­quired to.

“While the waiver elim­i­nates DHS’s obli­ga­tion to com­ply with var­i­ous laws with re­spect to cov­ered projects, the depart­ment re­mains com­mit­ted to en­vi­ron­men­tal stew­ard­ship with re­spect to th­ese projects,” the Home­land Se­cu­rity Depart­ment said in a state­ment. “DHS has been co­or­di­nat­ing and con­sult­ing — and in­tends to con­tinue do­ing so — with other fed­eral and state re­source agen­cies to en­sure im­pacts to the en­vi­ron­ment, wildlife, and cul­tural and his­toric ar­ti­facts are an­a­lyzed and min­i­mized, to the ex­tent pos­si­ble.”

The waivers ap­ply to the San Diego area, but more ex­emp­tions are likely to be needed as the project ex­pands across the 1,954-mile south­west­ern bor­der.

The waivers are as con­tro­ver­sial as Mr. Trump’s bor­der wall it­self, with harsh crit­i­cism from en­vi­ron­men­tal groups.

“If the Trump ad­min­is­tra­tion can’t rec­on­cile their xeno­pho­bic bor­der wall with dozens of en­vi­ron­men­tal safe­guards meant to pro­tect our com­mu­ni­ties, that’s yet an­other rea­son Congress should deny fund­ing and pre­vent con­struc­tion from go­ing for­ward,” said Sara Chi­effo, vice pres­i­dent of gov­ern­ment af­fairs at the League of Con­ser­va­tion Vot­ers.

Dan Mil­lis at the Sierra Club’s bor­der­lands pro­gram said it was ab­surd to speed con­struc­tion while tram­pling on en­vi­ron­men­tally sen­si­tive lands and his­toric and cul­tur­ally sig­nif­i­cant sites.

“Build­ing more walls along the U.S.Mex­ico bor­der is a ter­ri­ble and un­pop­u­lar idea,” he said. “It will cause flood­ing, block wildlife and waste tax­payer dol­lars.”

He de­manded that Congress try to thwart the project.

The Trump ad­min­is­tra­tion has fund­ing to build and test wall pro­to­types in San Diego, but the White House is seek­ing an ad­di­tional $1.6 bil­lion next year to build fenc­ing in Texas and to re­place out­dated bar­ri­ers in San Diego. The House last week ap­proved the money as part of a mas­sive se­cu­rity spend­ing bill, but Democrats have vowed to mount a fil­i­buster in the Se­nate to de­rail the leg­is­la­tion, in part be­cause of the wall fund­ing.

Shut­down fight

Repub­li­cans, though, are be­gin­ning to draw their own lines. Sev­eral con­ser­va­tives say the wall fight is worth hav­ing — even if it means test­ing an­other show­down over a pos­si­ble gov­ern­ment shut­down.

Although he hasn’t gone that far, House Speaker Paul D. Ryan, Wis­con­sin Repub­li­can, has be­come a ma­jor sup­porter of the wall. He said his trav­els along the bor­der have con­vinced him that the in­fras­truc­ture is needed.

“It’s time for the wall,” Mr. Ryan’s of­fice said in a memo re­leased Tues­day.

Some 352 miles of the bor­der is fenced, and an­other 300 miles are block­aded by bar­ri­ers that can stop most ve­hi­cles but al­low foot traf­fic.

En­vi­ron­men­tal­ists say more fenc­ing will con­strain wildlife that reg­u­larly crosses the bor­der, and con­struc­tion could dis­rupt oth­ers, in­clud­ing a num­ber of species listed as en­dan­gered or threat­ened. In par­tic­u­lar, con­ser­va­tion­ists worry that wall con­struc­tion could dis­rupt plans to try to en­tice the jaguar back into the U.S.

Out­side mag­a­zine last year used a U.S. Fish and Wildlife Ser­vice tool, plugged in a hy­po­thet­i­cal bor­der wall and con­cluded that 111 en­dan­gered species could suf­fer. The bald ea­gle, which is no longer en­dan­gered thanks to heroic con­ser­va­tion ef­forts, would also be threat­ened be­cause its range spans the bor­der between the U.S. and Mex­ico, Out­side con­cluded.

The le­gal waivers run from the Pa­cific Ocean east more than 20 miles. Much of that area is al­ready fenced but needs up­grades, the ad­min­is­tra­tion says. Pro­to­types will be tested at the far end of that range, which now has no fenc­ing.

Con­tract­ing doc­u­ments show the ad­min­is­tra­tion is look­ing for de­signs that could reach 50 feet in height and with­stand breach­ing at­tempts for up to four hours.

In or­der to use his waivers, Mr. Kelly de­clared the San Diego re­gion “an area of high il­le­gal en­try” with 31,000 il­le­gal im­mi­grants ap­pre­hended last year. That marked an uptick from the pre­vi­ous four years but was far be­low the 500,000 il­le­gal im­mi­grants cap­tured per year in the early 1990s.

The Ge­orge W. Bush ad­min­is­tra­tion re­peat­edly used waivers dur­ing the last ma­jor round of fence-build­ing from 2005 to 2008.

The fence built along the Barry M. Gold­wa­ter bomb­ing range near Yuma, Ari­zona, re­quired waiv­ing nine fed­eral laws, ac­cord­ing to the Con­gres­sional Re­search Ser­vice. To build fenc­ing along the San Pe­dro con­ser­va­tion area in south­east­ern Ari­zona re­quired the waivers of 20 fed­eral laws, in­clud­ing the En­dan­gered Species Act, the Clean Wa­ter Act, the Clean Air Act, the Safe Drink­ing Wa­ter Act, the Noise Con­trol Act, the An­tiq­ui­ties Act, the Wild and Scenic Rivers Act and the Ar­chae­o­log­i­cal and His­toric Preser­va­tion Act.

Each of those laws is on the list Mr. Kelly waived Tues­day, as well as the Wilder­ness Act, the Farm­land Pro­tec­tion Pol­icy Act, and even the Wild Horse and Burro Act and the Fed­eral Cave Re­sources Pro­tec­tion Act.


The le­gal waivers ap­ply to the San Diego area, but more are likely to be needed as Pres­i­dent Trump’s wall project ex­pands across the 1,954-mile south­west­ern bor­der.

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