The latest effort to thwart border wall construction in the Big Bend through the legal system was launched on Wednesday afternoon by the Presidio Municipal Development District (PMDD) and advocacy group Democracy Forward, who are suing the Department of Homeland Security (DHS) in D.C. federal court and asking that a judge halt construction of the wall in the Big Bend before “deadly” impacts from flash flooding threaten the border city.
In their complaint, the plaintiffs focus on the Presidio Flood Control Project (PFCP), or the official government moniker for the levee system along in and around the City of Presidio. The PFCP corrals floodwaters along Cibolo Creek, a tributary of the Rio Grande, and along the river itself near its confluence with the Rio Conchos. The levee system held up heroically in 2008 — the last massive record-setting flood to hit the area — protecting much of the City of Presidio while its sister city, Ojinaga, saw widespread flooding and property damage.
The PFCP was originally constructed by the Army Corps of Engineers in the 1970s, and since a wave of deadly flooding across Texas last summer, city and county officials have been sounding the alarm about the long-term health of the levee. Officials from the City of Presidio have been especially concerned about the potential for a border wall to be built across the PFCP, which the complaint explains would “replace the earthen slope of the existing levee” with a concrete wall and 30’ steel bollards on top — which could dramatically change how water interacts with the system.
The complaint goes on to explain that DHS had not sought necessary permission from other government entities to build on and around the levee. Under the River and Harbors Act — an 1899 law considered the oldest federal environmental law on the books — DHS would need to consult with the Secretary of the Army, which would trigger a review by the Corps of Engineers. To the plaintiffs’ knowledge, no formal review process has been initiated by DHS or by individual contractors to evaluate potential impacts of border wall construction to the levee system. (A spokesperson for DHS was not immediately available for comment.)
The suit builds upon mounting local concern over the potential impacts of the border wall on flooding. Surveys for the Army Corps of Engineers in the 1990s identified dozens of drainages in Western Presidio County that could pose potential headaches for roads and other major construction projects along the river — drainages that have come to life in the past few weeks as the summer monsoon season marked a splashy return.
Last week, No Wall 79852, an advocacy group based in Terlingua, wrote to Gen. Curtis A. Taylor of the Joint Task Force-Southern Border — the military deployment operating in communities across the Southwest — to ask that concertina wire placed underneath the Presidio Port of Entry be removed before the rainy season got underway. The group likened the razorwire installation to “a toothpick pushed top-down through a stretched-out spiky slinky,” and claims that the fence’s installation in loose soil is a recipe for disaster and a violation of the Army’s own building code. “The practical consequence is direct: the wire installation will not survive a meaningful rise of the Rio Grande,” the group wrote. “The stakes will pull, the concertina coils will mobilize with the flood, and the wire will travel downstream … it will become a hazard to livestock, wildlife, river guides and their tourist clients — including children — and ranch workers, with the cleanup, injury and liability exposure falling on downstream landowners who did not install it.”
PMDD’s suit against the government echoes similar fears. “If not properly planned and carried out, construction on the federal flood-control works in Presidio could compromise their integrity and leave the region vulnerable to deadly flash floods capable of destroying infrastructure, homes, farmland and agriculture,” the complaint argues.
The company tasked with building the wall through the city of Presidio — Fisher Sand & Gravel — has previously been sued over an alleged failure to comply with a similar requirement requiring cooperation with the International Boundary and Water Commission (IBWC), a government agency that regulates treaties with Mexico, before construction. In that suit, officials representing the IBWC claimed that the company’s in-house hydrological studies didn’t meet agency standards and claimed that the company’s failure to adequately plan for the impact of floodwater on the wall hastened erosion underneath the structure. (The suit was ultimately settled out of court and the company was required to put up a bond for repairs in case of future damage to the wall or the riverbank.)
The Trump administration has made liberal use of legal waivers to try to expedite border wall construction — including the Administrative Procedures Act (APA), which is commonly used to challenge the actions of individual federal agencies — and the PMDD’s suit anticipates that the government’s response will likely rest upon its authority to waive whatever laws it finds useful to fast-track construction. The group’s legal counsel at Democracy Forward is taking a two-pronged approach by suing on two counts: under the APA and an alternate ultra vires, or “beyond the powers,” action that claims DHS acted so wildly outside the scope of its regular authority in initiating border wall construction that PMDD is entitled to calling for a legal flag on the play.
Representatives for both PMDD and Democracy Forward stressed that the suit was about more than just a construction project in a small town in the middle of nowhere — it was a check on broader patterns of federal overreach. “The Trump-Vance administration cannot pick and choose which laws it wants to follow and which laws it wants to ignore,” said Skye Perryman, President and CEO of Democracy Forward. “Construction on the federal flood-control works in Presidio could compromise their integrity and leave the region vulnerable to deadly flash floods capable of destroying infrastructure, homes, farmland, and agriculture.”
PMDD Executive Director John Kennedy said that the wall project represented an existential crisis to the city he calls home and called for thoughtful and thorough engineering. “Here in Presidio, the river has never divided us. It’s the reason our whole community is here, on both sides,” he said. “The levee is what lets us live safely alongside it, and we’re asking that it get the flood-safety review the law requires before anyone builds on it.”
