The Department of Homeland Security said Tuesday it would waive 37 environmental laws and regulations to build prototypes of President Donald Trump's planned border wall and replace existing border infrastructure along a 15-mile stretch of the U.S.-Mexico boundary near San Diego.
The order comes weeks after the Tucson-based Center for Biological Diversity filed a lawsuit against the wall prototypes and infrastructure replacements in San Diego County.
The 2005 REAL ID Act gave the Homeland Security secretary discretion to waive laws for “expeditious” border infrastructure construction, a provision environmental groups say threatens natural resources and endangered species.
Homeland Security Secretary John Kelly, Trump's newly named chief of staff, is waiving laws that form the basis for the center’s lawsuit, which could lead to its dismissal.“
The intent of this waiver is potentially responding to our lawsuit,” said Brian Segee, an attorney for the center.
Controversial use of federal law
The power to waive laws in the REAL ID Act was granted to build border infrastructure, not to replace it or to build border wall prototypes years later, Segee said. The REAL ID Act was not meant to let the DHS secretary waive laws in perpetuity, he said.
During the George W. Bush administration, DHS Secretary Michael Chertof invoked waivers five times for border infrastructure construction.
In 2008, an amendment to the REAL ID Act required the department to “minimize impact” by consulting with other borderland stakeholders, such as property owners, and local and tribal governments.
Such stakeholders along the 15-miles of border near San Diego could include Border Field California State Park and the Tijuana River National Estuarine Research Reserve.
U.S. Fish and Wildlife spokeswoman Jody Holzworth refused to comment when asked if DHS had consulted the reserve about the coming construction. Border Field Park officials could not be reached for comment.
Among the waived laws is the Coastal Zone Management Act, which delayed border infrastructure construction in the same area before the 2005 REAL ID Act, Segee said.
White House defends waivers
Homeland Security officials defended the waivers.
“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 agency said in a statement.
Many of these laws are designed to look for and mitigate potential environmental impacts if applied properly, Segee said.
Other groups also criticized the order.
“Congress must step in to prevent unnecessary harm to the borderlands and its people by opposing any financing for Trump’s lawless border wall and mass deportation agenda,” said Dan Millis, who works on borderland issues for the Sierra Club.
Kelly’s order emphasized drugs and undocumented migration.
The U.S. Border Patrol apprehended over 31,000 undocumented migrants and seized approximately 9,167 pounds of marijuana and 1,317 pounds of cocaine in the San Diego Sector.
The border wall prototype will have “robust physical characteristics . . . intended to deter illegal crossings,” Kelly’s order said.
In June, the number of people apprehended or turned away at the border was down 53 percent compared to June of last year, according to the U.S. Customs and Border Protection.
Environmental coverage on azcentral.com and in the Republic is supported by a grant from the Nina Mason Pulliam Charitable Trust. Follow the azcentral and Arizona Republic environmental reporting team at OurGrandAZ on Facebook, Twitter and Instagram.
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