Kelly waives dozens of laws to make way for border wall
Congress is urged to deny Trump funding
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Homeland Security officials say the exemptions are needed so the department can replace outdated fencing along the U.S.-Mexico border in Southern California and begin testing prototypes this year for construction of the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.
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.