National Guard UH-72 pilots Zachary Pruitt flies over the Tucson Sector approximately 90 miles southwest of Tucson on May 18, 2018. (CBP photo)

DHS Issues Waivers to Build Wall Through Wildlife Refuge, National Monument

The Department of Homeland Security (DHS) issued two waivers, which will ensure expeditious construction of new bollard wall within the U.S. Border Patrol’s Tucson and El Centro Sectors in Arizona and California, respectively. The projects covered by the waivers include up to approximately 78 miles of new bollard wall in place of dilapidated and outdated designs, in addition to road construction and improvement and lighting installation. The waivers were published in the Federal Register on May 15, 2019.

The affected areas include Organ Pipe Cactus National Monument and Cabeza Prieta National Wildlife Refuge.

To support DHS’s actions under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended (IIRIRA), DHS requested that the Department of Defense (DoD), pursuant to its authority under 10 U.S.C. § 284(b)(7), assist with the construction of fences, roads and lighting within specified locations of the border in order to block drug-smuggling corridors across the international boundary between the United States and Mexico. The Acting Secretary of Defense determined that the projects covered by these waivers meet the statutory requirements of 10 U.S.C. § 284(b)(7).  As such, these projects will be funded by appropriations available to DoD. DoD, in close coordination with DHS and U.S. Customs and Border Protection (CBP), will plan and execute these projects in coordination with the U.S. Army Corps of Engineers (USACE).

These waivers are pursuant to authority granted to the Secretary of Homeland Security by Congress and cover a variety of environmental, natural resource and land management laws. Congress provided the Secretary of Homeland Security with a number of authorities necessary to carry out DHS’s border security mission. Section 102(a) of IIRIRA provides that the Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States.

In section 102(b) of IIRIRA, Congress mandated the installation of additional fencing, barriers, roads, lighting, cameras and sensors on the southwest border. Finally, in section 102(c) of IIRIRA, Congress granted to the Secretary of Homeland Security the authority to waive all legal requirements that the Secretary, in the Secretary’s sole discretion, determines necessary to ensure the expeditious construction of the barriers and roads authorized by section 102 of IIRIRA.

The geographic scope of the Tucson waiver covers the areas defined below.  These projects will total approximately 63 miles of bollard wall within these areas:

  1. Starting approximately one-half (.5) mile west of Border Monument 178 and extending east to Border Monument 162;
  2. Starting at Border Monument 100 and extending east for approximately one (1) mile;
  3. Starting at Border Monument 98 and extending east to Border Monument 97; and
  4. Starting approximately one-half (.5) mile west of Border Monument 83 and extending east to Border Monument 74.

The geographic scope of the El Centro waiver covers the areas defined below.  These projects will total approximately 15 miles of bollard wall within these areas:

  1. Starting at Border Monument 229 and extending east to approximately one and one-half miles (1.5) west of Border Monument 223.

While the waivers eliminate DHS’s obligation to comply with various laws with respect to covered projects, DHS remains committed to environmental stewardship. DHS has initiated consultation with other federal and state resource agencies to ensure that impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the greatest extent possible.

The Tucson and El Centro Sectors are areas of high illegal entry and are experiencing large numbers of individuals and narcotics being smuggled into the country illegally. The construction of border infrastructure within these project areas will support DHS’s ability to impede and deny illegal border crossings and the drug and human smuggling activities of transnational criminal organizations.

DHS continues to implement President Trump’s Executive Order 13767 – also known as Border Security and Immigration Enforcement Improvements – and continues to take steps to immediately plan, design and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border.

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