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Backgrounder: Environmental Waiver
National security and the waiver authority   Secure borders are a significant element of our national security, and are a priority for DHS, Congress, and the American public. Congress has mandated that the Department of Homeland Security construct fence along the Southwest Border of the United States by the end of 2008, and has given the Secretary certain tools and authority to achieve that critical national security goal. Pursuant to Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act, as amended (IIRIRA), Congress granted to the Secretary of Homeland Security waiver authority that the Secretary may utilize to ensure expeditious construction of the border infrastructure that is necessary to deter and prevent illegal entry into the United States. Consistent with the authority granted by Congress, the Secretary has determined that it is necessary to invoke this statutory waiver authority to ensure expeditious construction of the necessary border infrastructure and in order to better ensure that it is constructed within the timeframe set by Congress. An urgent component of the effort to secure our borders and protect our country is the installation of border security infrastructure along certain sections of the border, including pedestrian fence, vehicle fence, access roads and border surveillance technology to detect and deter illegal entry. DHS considers any further delay in constructing the tactical infrastructure to present unacceptable risks to our Nation’s security; further delay will only result in more drug and human smuggling and other dangerous, illegal activities along the border. There are in place a number of court decisions upholding the constitutionality of the waiver authority. Consistent with the authority granted to him by Congress, Secretary Chertoff has determined that it is necessary to utilize this statutory waiver authority for the border security project to ensure expeditious construction of this much-needed border security infrastructure.

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Decision  As of March 21, 2008, a total of approximately 309 miles of fencing is in place along the southwest border – approximately 169 miles of pedestrian fencing and approximately 140 miles of vehicle fencing. Approximately 361 miles of fencing (201 pedestrian fencing and 160 vehicle fencing) remain to be constructed within the next 9 months.

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Of these 361 remaining miles, approximately 48 miles are under construction, under contract, or deemed as military (Operation Jump Start or Joint Task Force North) projects, leaving approximately 313 miles. Of those 313 miles o Approximately 234 of those miles to be constructed on federal lands were determined by DHS to be at risk due to legal and administrative impediments, e.g., DOI cannot authorize construction in Wilderness Areas or National Wildlife Refuges, and obtaining the necessary rights of way for other federal lands is a lengthy process. o The remaining miles, which are to be constructed on non-federal lands, also face potential legal and administrative impediments that will delay construction, e.g., timing of Endangered Species Act compliance or potential NEPA or other environmental litigation. o Approximately 22 miles are at risk because current federal law does not allow CBP to implement a joint flood protection/border barrier project developed through CBP’s consultations with a local community in Texas.

After considering what we believe are all possible alternatives, the Secretary has decided to exercise his waiver authority to allow these – as well as other important border barrier projects – to proceed in a timely manner. The Secretary has waived in their entirety certain laws that may impede expeditious construction of border infrastructure. The National Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.)), the Endangered Species Act (Pub. L. 93-205, 87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)), the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act) (Act of June 30, 1948, c. 758, 62 Stat. 1155 (33 U.S.C. 1251 et seq.)), the National Historic Preservation Act (Pub. L. 89-665, 80 Stat. 915 (Oct. 15, 1966) (16 U.S.C. 470 et seq.)), the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the Archeological Resources Protection Act (Pub. L. 96-95, 16 U.S.C. 470aa et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Noise Control Act (42 U.S.C. 4901 et seq.), the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.), the Archaeological and Historic Preservation Act (Pub. L. 86-523, 16 U.S.C. 469 et seq.), the Antiquities Act (16 U.S.C. 431 et seq.), the Historic Sites, Buildings, and Antiquities Act (16 U.S.C. 461 et seq), the Wild and Scenic Rivers Act (Pub. L. 90-542, 16 U.S.C. 1281 et seq.), the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.), the Coastal Zone Management Act (Pub. L. 92-583, 16 U.S.C. § 1451 et seq.), the Wilderness Act (Pub. L. 88-577, 16 U.S.C. 1131 et seq.), the Federal Land Policy and Management Act (Pub L. 94-579, 43 U.S.C. 1701 et seq.), the National Wildlife Refuge System Administration Act (Pub. L. 89669, 16 U.S.C. 668dd-668ee), the Fish and Wildlife Act of 1956 (Pub. L. 84-1024, 16 U.S.C. 742a, et seq.), the Fish and Wildlife Coordination Act (Pub. L. 73-121, 16 U.S.C. 661 et seq.), the Administrative Procedure Act (5 U.S.C. 551 et seq.), the Otay Mountain Wilderness Act of 1999 (Pub. L. 106-145), Sections 102(29) and Co103 of Title I of the

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California Desert Protection Act (Pub. L. 103-433), 50 Stat. 1827, the National Park Service Organic Act (Pub. L. 64-235, 16 U.S.C. 1, 2-4), the National Park Service General Authorities Act (Pub. L. 91-383, 16 U.S.C. 1a-1 et seq.), Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978 (Pub. L. 95-625), Sections 301(a)-(f) of the Arizona Desert Wilderness Act (Pub. L. 101-628), Rivers and Harbors Act of 1899 (33 U.S.C. 403), Eagle Protection Act (16 U.S.C. 668 et seq.), Native American Graves Protection & Repatriation Act (25 U.S.C. 3001 et seq.), American Indian Religious Freedom Act (42 U.S.C. 1996), Religious Freedom Restoration Act (42 U.S.C. 2000bb), ArizonaIdaho Conservation Act of 1988 (Pub. L. 100-696, 16 U.S.C. 460xx), National Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), Multiple Use and Sustained Yield Act of 1960 (16 U.S.C. 528-531). Objectives and Benefits  In addition to the human cost of illegal entry, there are innumerable negative impacts on the environment. For example: - Illegal roads divert the normal flow of water and rob native plant cover of the moisture it depends on to survive. Unnatural foot trails disturb plant life, nesting areas, and redirect water run-off. - Illegal entrants leave trash and high concentrations of human waste, which impact wildlife, vegetation and water quality. - Wildfires caused by campfires of illegal entrants have presented a significant threat to human safety and the lands along the border, as well as increased negative impacts to soil, vegetation, cultural sites and other sensitive resources.  DHS considers any further delay in constructing the tactical infrastructure and fencing along the U.S. Mexico border to present unacceptable risks to our Nation’s security, in addition to the environmental and human problems that will continue to occur if this area of the border is not secured. DHS believes that its efforts to stem illegal cross border activity will reduce some significant environmental impacts in that area, and increase the public’s ability to enjoy it as a resource.

Where fence construction will make an immediate difference  Tomates, Brownsville, Texas: Brownsville has been and continues to be a focal point of illegal cross-border activity due to its proximity to Matamoros, which is the center of operations for the Gulf drug cartel. This area also has experienced a significant number of border violence incidences, including assaults on Border Patrol agents. Tactical infrastructure would greatly enhance this country’s ability detect illegal incursions and deter illegal entry in that area.

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El Calaboz- El Ranchito, Cameron County, Texas: The area south of the proposed fence is primarily farmland, dense brush and vegetation. (b) (7)(E)

Process  Although the exercise of the Secretary’s authority under Section 102(c) of IIRIRA means that certain laws will be waived, DHS is neither compromising its commitment to responsible environmental stewardship nor its commitment to listen and respond to the needs of border communities.  DHS strives for a transparent and consultative process as it moves forward with the construction of physical barriers along the border.  DHS is committed to continuing a consultative process with environmental stakeholders and communities. This commitment is evident in our current and planned efforts to involve the public in the environmental process.  Even though the Secretary has invoked a waiver of certain environmental laws, he remains committed to building this tactical infrastructure in an environmentally responsive manner.  To minimize impacts, DHS is committed to meeting and working closely with Department of the Interior land and Federal and state stakeholders for each component of the border security infrastructure. Where possible, infrastructure location and design will be altered and other best management practices will be incorporated to minimize impacts. Where avoidance or minimization cannot be achieved, the Secretary is committed, in cooperation with the Department of the Interior, to identify and fund mitigation measures for wildlife and habitat impacts valued up to $50 million. In addition, the Secretary is committed to avoiding adverse impacts to historic and cultural resources. Where possible, DHS will work with DOI land managers, tribes and State Historic Preservation Offices (SHPOs) to identify and protect these important sites where possible. U.S. Army Corps of Engineers (USACE) has completed or will complete shortly an analysis of the environmental impacts for the affected areas and has taken public comments on the projects.

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Regardless of the waiver, CBP is committed to writing and implementing environmental stewardship plans for each border infrastructure project.

Mitigation   DHS has demonstrated that the use of the Secretary’s statutory waiver authority does not mean that DHS will be turning its back on its commitment to the environment. DHS is currently negotiating an agreement with USFWS to transfer upwards of $800,000 to help with mitigation and recovery efforts for the endangered Sonoran Pronghorn and lesser long-nosed bat on the Cabeza Prieta National Wildlife Refuge and Barry M. Goldwater Range (BMGR).  DHS is moving forward with this effort even though the Endangered Species Act was a part of the BMGR waiver that allowed DHS to expeditiously construct much-needed pedestrian fencing and other infrastructure on the BMGR.  In November of 2007, the Secretary issued a waiver that allowed DHS to immediately move forward with an effort to secure the border in and around the San Pedro National Riparian Conservation Area (SPRNCA) in southern Arizona.  Since the issuance of the waiver, DHS has agreed to several measures, in cooperation with U.S. Fish and Wildlife Service (USFWS), to reduce the impact of the fencing in the SPRNCA.  Specifically, DHS agreed to exclude on a “trial-basis,” the installation of fence within the San Pedro River basin.  In addition, DHS agreed to implement a number of measures designed to reduce and monitor invasive plant species, erosion, and sediment problems and has dedicated more than $1 million to the mitigation of two archeological sites in the conservation area.

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