Rules waived for U.S. fence

Times Staff Writers

In an aggressive move to finish 670 miles of barriers along the U.S.-Mexico border by the end of the year, the Department of Homeland Security on Tuesday announced plans to waive federal and state environmental laws.

The two waivers, which were approved by Congress, will allow Homeland Security to slash through a thicket of more than 30 environmental and cultural laws to speed construction.

Environmentalists and local officials have strenuously opposed some of the planned infrastructure projects, saying they will damage the land and disrupt wildlife.


But Homeland Security Secretary Michael Chertoff said Tuesday that the department was committed to minimizing the impact on the environment. The draft environmental assessments, he said, show the projects will have only “insignificant impacts on the environment and cultural resources.”

“DHS is neither compromising its commitment to responsible environmental stewardship nor its commitment to solicit and respond to the needs of state, local and tribal governments,” Chertoff said in a prepared statement.

Critics, however, said the waivers were intended to sidestep growing and unexpectedly fierce opposition -- especially in Arizona and in Texas, where concerns have been raised about endangered species and fragile ecosystems along the Rio Grande.

“The Bush administration’s latest waiver of environmental and other federal laws threatens the livelihoods and ecology of the entire U.S.-Mexico border region,” said Sierra Club Executive Director Carl Pope. “Secretary Chertoff chose to bypass stakeholders and push through this unpopular project on April Fool’s Day. We don’t think the destruction of the borderlands region is a laughing matter.”

Environmentalists’ concerns are that a fence could, among other things, disrupt the migration corridors of butterflies and two endangered species of wildcats: the ocelot, which resembles a miniature leopard, and the jaguarundi, an otter-faced relative of the puma.

In California, invoking the waivers clears the way for 4.5 miles of fencing and 6 miles of roads on Otay Mountain, east of San Diego, a plan that has not met with significant organized opposition.


Homeland Security’s push to build more fencing came after Congress failed to overhaul immigration laws amid an acrimonious national debate over illegal border crossings. In 2006, conservatives in Congress championed the Secure Fence Act despite the reluctance of President Bush, who has insisted that a comprehensive approach is needed to deal with illegal immigration. Congress subsequently gave Chertoff the power to waive federal law to hasten construction.

The department has faced intense opposition from border communities and has had to go to court against more than 50 property owners simply to survey land for the fence. Experts said the congressional waivers would make it extremely difficult for successful legal challenges based on environmental or cultural claims. But the waivers will not affect the legal battles between Homeland Security and private landowners.

On Tuesday, Republicans in Congress hailed Chertoff’s decision, saying the accelerated plans for completing border projects would help stem illegal immigration and drug smuggling.

“It’s great; this is the priority area where most of the illegal activity is going on and where most of the deaths are occurring,” said Rep. Brian P. Bilbray (R-Carlsbad), chairman of the Immigration Reform Caucus.

But backers of comprehensive immigration reform said the waivers did little to address the fundamental weaknesses of immigration policy and would not lead to tighter border controls. “This isn’t the first time the DHS has used this authority, and each time it has resulted in increased frustration by all stakeholders,” said Rep. Hilda L. Solis (D-El Monte).

Homeland Security has completed about 300 miles of pedestrian and vehicle barriers. An additional 370 miles remain to be built, along with all-weather roads, cameras, lighting and other infrastructure projects. But much of that fencing -- along a 470-mile span stretching from Texas to California -- has been held up by federal, state and local regulations, officials said.


Until Tuesday, the department had given few hints that waivers would be used. Homeland Security had followed the environmental impact statement process, as required by the National Environmental Policy Act. The public was allowed to comment on the draft environmental impact statements and assessments. Some environmental groups said they were awaiting the final reports when Chertoff made the announcement.

Chertoff said the department had been a careful steward of the environment, even after exercising waiver authority. Three previous waivers have been issued by Homeland Security.

One in September 2005 was issued to complete about 14 miles of fence near San Diego. Another in January 2007 was to build infrastructure near the Barry M. Goldwater military range in southern Arizona. A third waiver was issued in October 2007 near the San Pedro Riparian National Conservation Area, also in southern Arizona.

Chertoff said the department had helped in the recovery efforts of two endangered species in Arizona, the Sonoran pronghorn and lesser long-nosed bat, and had delayed fence construction to excavate a culturally significant site within the San Pedro River basin.

Critics, however, say the department’s environmental assessments have been rushed efforts that present a distorted and incomplete picture.

“It’s surprising how cursory their reviews have been,” said Kim Delfino, director of the California branch of Defenders of Wildlife. “There’s a lot of boilerplate and analysis shifted from one document to another. It’s kind of like they were going through the motions.”



Marosi reported from San Diego and Gaouette from Washington.