The town of Presidio has an almost surreal quality. Most Americans wouldn’t be able to locate it on a map. It is located on the Rio Grande in the bone-dry Big Bend region of West Texas. About 3,200 people live there. A functional border crossing. After a devastating flood in 2008 prompted millions of dollars’ worth of improvements, the town has been kept dry by a levee that has quietly performed its function for decades. And now the federal government wants to construct a wall right through that levee.
The lawsuit over the Presidio border wall was not unexpected. Local officials had been asking federal border agencies basic questions for months, such as what is being planned, how it will impact the levee, and what would happen if the design was flawed. The responses were slow, ambiguous, and occasionally inconsistent. It was more of a reluctant last resort than a dramatic escalation when the Presidio Municipal Development District finally filed a lawsuit against the Trump administration earlier this year.
Flood risk is at the heart of the case. Approximately 52 square miles of agricultural and urban land are protected by the Presidio Flood Control Project levee. The Rivers and Harbors Act of 1899 was designed to guarantee that the U.S. Army Corps of Engineers would provide engineering approval before altering a levee of that magnitude. However, the Department of Homeland Security subtly amended its waiver notice to incorporate that law shortly after it became crucial to the lawsuit. The legal requirement at the center of the case vanished in an instant.
Here, it’s difficult to ignore the pattern. In order to expedite construction along the border, DHS has waived a substantial number of regulations, including those pertaining to environmental laws, cultural resource protection, and contracting requirements. A 1996 immigration law gives the Homeland Security Secretary broad authority to waive legal requirements in areas of high illegal entry, according to the administration’s stance, which is reiterated in court filings. That argument has previously been upheld in court from a legal standpoint. The practical question of whether this particular wall, in this particular location, will push floodwaters toward a town that cannot afford to learn the hard way is different from winning a legal battle.
Judge Reggie B. Walton rejected Presidio’s request to halt construction on Sunday. He directly addressed the town’s worries, stating that even though the court was aware of the possible risks, it was “compelled” to reject the motion. The phrase “compelled” has some significance. It doesn’t sound like a judge who believed the concerns were unfounded. It seems to be written by someone who thought there wasn’t much room for him under the current legislation.
At the state level, the situation has also gotten more complicated. Following what the GLO described as the unlawful clearing of state-managed land in Presidio County, Texas Land Commissioner Dawn Buckingham sent a cease and desist letter to Customs and Border Protection and its contractor, Barnard Construction. Images displayed dirt that had been dug up and devoid of vegetation by large machinery. Instead of framing it as a wall opposition, Buckingham presented it as a sovereignty issue. A Republican state official who typically supports border enforcement objectives is taking an uncommon stance, effectively telling the federal government that it went too far. It remains to be seen if that has any practical implications.
In the meantime, the federal government itself had previously sued Fisher Sand & Gravel, the contractor given $1.2 billion to construct the Presidio section, for subpar wall construction in South Texas. It’s difficult to completely ignore that detail because it keeps coming up in the project’s coverage.
The administration is committed to presenting a finished first layer of the $46 billion wall project by the following year. Crossings by migrants are already at all-time lows. Who you ask will determine whether the urgency is political or operational, and the response usually varies by zip code. Less controversially, there are legitimate concerns regarding flood modeling, engineering review, and accountability that fall somewhere between Washington’s schedule and Presidio’s levee that a legal waiver doesn’t really address.
The lawsuit is still pending. The case is still pending even though Presidio lost this round. And the Rio Grande continues to flow, unhurried and unaffected by court decisions.
