WASHINGTON – Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman, ID-Conn., Monday asked the Department of Homeland Security for additional information on its recent decision to waive environmental requirements before building a section of the Southwest border fence.
In a letter to Secretary Michael Chertoff, the Senator asked for details on why DHS wants to waive 19 federal statutes to build the fence through two miles of the San Pedro Riparian National Conservation Area (SPRNCA) along the Arizona-Mexico border. He also asked for information on all actions being developed to monitor and lessen the environmental impact of building the fence. The letter concluded by asking DHS for copies of any Environmental Assessments and Environmental Impact Statements completed before the waiver decision.
“While developing additional layers of border security is a priority for our nation,” wrote Lieberman “It should not impede our ability to also continue to be good environmental stewards.”
A full copy of the letter can be found below.
December 10, 2007
The Honorable Michael Chertoff
U.S. Department of Homeland Security
Washington, DC 20528
Dear Secretary Chertoff:
I am writing to inquire about the Department of Homeland Security’s (DHS) recent use of the waiver provision in the REAL ID Act (P.L. 109-13) to declare a section of fence in the San Pedro Riparian National Conservation Area (SPRNCA) along the Arizona-Mexico border exempt from 19 federal laws, including the National Environmental Policy Act (NEPA), the Clean Air Act, the Endangered Species Act, and the Clean Water Act.
On October 10, 2007, the U.S. District Court for the District of Columbia issued a temporary restraining order to cease construction of approximately two miles of border fence and roads in the SPRNCA. The court cited several concerns over the manner in which the Bureau of Land Management (BLM) and DHS handled the Environmental Assessment under NEPA for this area including the lack of administrative record, lack of public comment period, failure to consider the cumulative effects of the larger construction of border fences along the Southwest Border, and an “apparent rush to judgment by the BLM” to allow fencing in this conservation area. The decision further stated that DHS had not sufficiently explained the reasons for the urgency in building fencing in the SPRNCA. A few days after the U.S. District Court’s order, DHS waived several critical environmental and safety laws in order to move forward with the fence construction.
While developing additional layers of border security is a priority for our nation, it should not impede our ability to also continue to be good environmental stewards. NEPA is designed to establish environmental review procedures on federal agency actions. The process NEPA dictates ensures that stakeholder input can improve government projects – protecting sites of environmental, historical and cultural value. Furthermore, the environmental regulations that were waived play a critical role protecting public welfare.
In order to gain a better understanding of the Department’s decision to use the waiver authority in this instance, I respectfully request that you provide the Committee with timely responses to the following questions:
1. What are the criteria used by DHS to determine when it is appropriate to use the waiver provision in the REAL ID Act (P.L. 109-13) to pursue border fence construction?
What evidence does DHS have that the section of fence in the SPRNCA meets those criteria?
2. What specific evidence does the Department have that the section of the border in the SPRNCA represents a higher threat for illegal entrants than other sections of the Arizona-Mexico border?
3. Please describe why vehicle barriers, which have a reduced impact on wildlife movement compared to pedestrian fencing, would not be an acceptable alternative to deter illegal migration in this area.
4. Why does the waiver cover almost 7 miles of fence when the judge’s restraining order only applied to approximately 2 miles of fence?
5. If DHS was confident that the pending case would ultimately be decided in its favor, why did it not continue to pursue the case?
6. Please describe, in detail, the measures that DHS, in cooperation with the Fish and Wildlife Service, has adopted to reduce the impact of the fence in the SPRNCA on the ability of wildlife to disperse across the border.
7. Please describe, in detail, the measures that DHS, in cooperation with the Fish and Wildlife Service, has adopted to reduce the spread of invasive species associated with the construction of the SPRNCA fence.
8. Please describe, in detail, the measures that DHS, in cooperation with the Fish and Wildlife Service, has adopted to reduce the impact of the SPRNCA fence on sedimentation in the San Pedro River.
9. Does DHS or BLM have a monitoring plan in place that would evaluate the impact of the fence?
10. On September 19, 2007, DHS filed a Notice of Intent to Prepare an Environmental Impact Statement to identify and assess the potential impacts associated with a proposal to construct and operate tactical infrastructure along approximately 70 miles of border between Texas and Mexico. By what criteria did DHS decide to conduct an EIS on a regional scale in Texas, but decide it was not appropriate in Arizona or other southern border states?
11. Please provide a copy of the Environmental Assessments and Environmental Impact Statements done in relation to a possible border barrier from 1999-2006 for SPRNCA.
I look forward to receiving a response to these questions by December 20, 2007. If you have questions about this request, please contact Patricia Rojas on the majority Committee staff at (202) 224-2627. Thank you in advance for your cooperation.
Joseph I. Lieberman