By: Faye DeHoff
The Department of Homeland Security has issued a waiver to waive certain laws, regulations and other legal requirements to ensure the expeditious construction of barriers in the vicinity of the international border near Calexico, California. The waiver was published in the Federal Register today.
This waiver is pursuant to authority granted to the Secretary of Homeland Security by Congress and covers a variety of environmental, natural resource, and land management laws.
The Department has exercised the waiver authority in Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), as amended, on five previous occasions from 2005 to 2008, as well as exercising this waiver authority earlier this year for a project in the San Diego area, which was announced in August.
This current waiver covers certain border infrastructure projects in the United States Border Patrol’s El Centro Sector, a critical sector for border security. In fiscal year 2016 alone, the United States Border Patrol apprehended more than 19,400 undocumented immigrants and seized approximately 2,899 pounds of marijuana and approximately 126 pounds of cocaine in the El Centro Sector.
The El Centro Sector remains an area of high illegal entry, and replacing the existing fencing, which was built in the 1990s and no longer meets the Border Patrol’s operational needs, is a high priority.
To begin to meet the need for additional border infrastructure in this area, DHS will implement a border fence replacement project. This project will focus on an approximately three-mile segment of the border within the El Centro Sector that starts at the Calexico West port of entry and extends westward, replacing approximately two miles of the existing primary pedestrian fence with a new bollard wall. Congress funded the project in the FY 2017 DHS Appropriations Act.
Congress provided the Secretary of Homeland Security with a number of authorities necessary to carry out DHS’s border security mission. One of these authorities is found at section 102 of the IIRIRA.
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 has called for 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 his sole discretion, determines necessary to ensure the expeditious construction of the barriers and roads authorized by section 102 of IIRIRA.
The Department is implementing President Trump’s Executive Order 13767, 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.
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. DHS has been coordinating and consulting — and intends to continue doing so — with other federal and state resource agencies to ensure impacts to the environment, wildlife, and cultural and historic artifacts are analyzed and minimized, to the extent possible.