West Texas Town Sues Federal Government Over Border Wall Plan

The Texas Tribune

PRESIDIO, TX — A small town along the Texas border with Mexico is fighting the federal government’s efforts to build a border wall running through the community’s levee system. 

The town argued in court Tuesday that the wall could cause flooding and that the administration isn’t following the law as it moves forward with its plans.

The hearing in federal court came as the Department of Homeland Security moves forward with its $46 billion plan to complete a border wall from the Pacific Ocean to the Gulf of America and deliver on what has long been a signature promise of President Donald Trump. 

The lawsuit brought by the development district of Presidio pits a small town of about 3,200 residents against the federal government. Lawyers for the development district contend the government’s plans could compromise the levee system protecting the town from flash flooding and that the government flouted a key act that requires it to seek permission from the Army Corps of Engineers before building on or near the levees.

The government argues that there is no final plan for where the border wall will go or how it will be built. Regardless, the administration asserts it has the authority to waive a vast swath of regulations to build the wall as it seeks to get the number of people crossing the border every day to zero.

The town is worried about the effect the wall would have on a series of berms and levees built in the 1970s and 1980s along the Rio Grande and tributaries to combat flooding.

In court documents, Presidio’s development district said Customs and Border Protection plans to “replace the earthen slope of the existing levee with a concrete wall, with 30-foot steel bollard panels installed on top.” The district says it has asked the agency for more details but has been told they can’t be shared due to “national security.”

“There is unfortunately a long history here of CBP construction causing or increasing flood risks,” said Laura Bakst, a lawyer for Democracy Forward, which is representing Presidio’s development district in the case.

A lawyer for the government said during Tuesday’s hearing that it’s too soon to argue that the proposed wall could harm Presidio because Customs and Border Protection hasn’t actually decided on a final plan for it.

In the race to build the wall, both former Homeland Security Secretary Kristi Noem and the current secretary, Markwayne Mullin, have waived numerous requirements protecting the environment or archaeological sites that the federal government normally has to follow when building infrastructure projects.

Under legislation passed by Congress, Homeland Security does have the authority to waive certain requirements specifically to speed up the building of walls along the U.S.-Mexico border. 

In Presidio’s case, the development district is arguing that Homeland Security is running afoul of the Rivers and Harbors Act. The department has waived it, but lawyers for Presidio argued that because of the wording of the Act, Homeland Security was still required to consult with the Army Corps of Engineers before launching the project.

A key question: When would construction start? Timing has been an issue beyond Presidio as landowners up and down the border look for an answer. Construction crews have pre-positioned supplies — including the steel bollard wall panels — but no actual wall-building has started in the area.

A lawyer for the Justice Department told the judge construction could begin between late August and October.

Homeland Security has indicated that getting the wall built is a priority.

Mullin said during congressional testimony in June that the preliminary layer of the wall will be finished by “this time next year.” The head of Customs and Border Protection, Rodney Scott, has said the agency is putting up 6 miles (10 kilometers) of wall a week.

Judge Reggie Walton said he was struggling with the issue of how much authority he had to limit the department considering that Congress had given it the ability to waive certain requirements.

The judge said he would issue a ruling in the coming week.