BORDER FENCE

DHS commits $50M for projects to offset environmental damage

The Department of Homeland Security signed an agreement with the Interior Department last week to commit $50 million for mitigation projects aimed at compensating for the effects to the environment from new fencing constructed along the U.S. border with Mexico in recent months.

Under the agreement, Interior will come up with a list of projects, based on recommendations from the department's biologists, and DHS will pay for them. Interior is to submit its list by June 1.

DHS has drawn a welter of criticism from environmental groups, land managers, private landowners and citizens groups for carrying out the fence project, which involves constructing 670 miles of new vehicle and pedestrian fencing along segments of the border in Texas, New Mexico, Arizona and California, without examining its full environmental impacts. Last April, then-DHS Secretary Michael Chertoff used his authority under the REAL ID Act of 2005 to waive 37 federal laws and all state, local and tribal laws to expedite construction of the fence along 500 miles of the border. Among the environmental laws included in the waiver were the Endangered Species Act, Clean Water Act and the National Environmental Policy Act. Lawsuits challenging the waiver authority were unsuccessful.

At the time, Chertoff said the agency would still take pains to be good "environmental stewards." Weeks after the issuance of the April 1 waiver -- and amid considerable public pressure -- Interior and DHS began discussing the prospect of a mitigation fund to offset the damage of fence projects constructed under the waiver. The $50 million, announced Jan. 15, was included in the fiscal 2009 appropriation for border security, fencing, infrastructure and technology.

"Today's signing of this memorandum of agreement demonstrates that our commitment is not only words, but actual resources, which have been set aside to allow DOI to mitigate the impact of our border security efforts in environmentally sensitive areas," said Customs and Border Protection Commissioner W. Ralph Basham, in a statement issued last Thursday. DHS oversees Customs and Border Protection, which is conducting the fence project with the help of the Army Corps of Engineers. DHS estimates that it has already spent about $40 million to the minimize the environmental consequences of fence segments it constructed without a waiver.

Rick Schultz, Interior's national borderlands coordinator, who helped broker the memorandum of understanding between Interior and DHS, said he is happy with the new agreement. "We're pleased with the level of commitment they've made at this point in time, and we hope to bring them on as full partners in the future," he said, adding that the two agencies are still in discussions about a possible long-term environmental monitoring program.

Mitigation projects will involve either land acquisition, habitat restoration or monitoring to gage how the fence is affecting wildlife and other natural phenomena, Schultz said. "Our biologists say there's plenty of opportunities out there for mitigation," he said.

But Matt Clark, Southwest representative for the Defenders of Wildlife in Tucson, Ariz., said that in some areas, unique ecological systems have been irreparably lost.

"Much of the damage that has been done really does not have a pricetag," Clark said, citing the habitat in the Altar Valley of Arizona, part of which lies within the Buenos Aires National Wildlife Refuge, as an example. "You cannot throw money at that and fix it. Because there is only one Altar Valley, and that is the best dispersal corridor for the cactus ferruginous pygmy owl. Now, it has been bisected. You can't buy another Altar Valley."

Jim Peugh, conservation chair of the San Diego Audubon Society, which is concerned about a fence project now in progress that involves filling a canyon near the Tijuana River estuary (Land Letter, Jan. 16), added that while $50 million is a good "first step," it is not enough to address the environmental damage from hundreds of miles of new fencing. "For this to have much of a protective effect, it would have to be the first installment of a reliable stream of funds to try to minimize the impacts of the project," he said.

Peugh also wondered how far Interior could go in trying to mitigate the damage from the fence. "Some harder issues will be, will the Interior Department be allowed to modify the fence and culvert under it to allow essential wildlife movement across the border?" he asked.

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It would have been wiser -- and less expensive -- to address environmental concerns when the fence was being designed, he said.

Peugh, Clark and other environmental advocates would like to see parts of the new fence removed. Schultz said that option is not on the table. "Removal hasn't been discussed," he said. But Interior has encouraged environmental monitoring during construction of the remaining segments of fence, he added. Fence projects in California and Texas have not yet been completed. In the latter case, DHS is in the midst of court proceedings to condemn some of the private lands along the border.

A new administration, a new approach?

Landowners along the border and environmental groups are hoping the Obama administration will take a different stance on the border fence. New DHS Secretary Janet Napolitano criticized the fence project while governor of Arizona but has not yet indicated whether she will push for a shift in border policy.

"She's got a very pragmatic and grounded approach to the border, and she also has a very good environmental record, so I think she'll be open to reassessing the whole border wall strategy," Clark said of Napolitano. "But I don't anticipate that she'll come in and call for knocking walls down right away."

During her confirmation hearing before the Senate last week, Napolitano said fencing the border in urban areas makes sense, but that fencing the entire Southwestern border is impractical. As governor of Arizona, Napolitano often said of the new border fence project, "Show me a 15-foot-high fence, and I'll show you a 16-foot-high ladder."

Clark said he would like to see DHS place a moratorium on construction until the new administration decides what approach it wants to take on border security.

Schultz said that regardless of what the new administration's policy is, DHS will have to continue balancing border security with environmental protection. "Regardless of the nation's policy on border security, it's in the best interest of Interior and DHS to work with the environmental community to find ways to do both," he said.

Meanwhile, challenges to the fence continue. Last week, the Texas Border Coalition, a group of border town mayors, county judges and other officials, asked the U.S. Supreme Court to hear an appeal by El Paso County, the city of El Paso and others challenging the constitutionality of Chertoff's waivers.

Click here to read the Texas Border Coalition brief.

April Reese writes from Santa Fe, N.M.

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