Order Code RL33659
Border Security: Barriers Along
the U.S. International Border
Updated May 13, 2008
Blas Nuñez-Neto
Analyst in Domestic Security
Domestic Social Policy Division
Yule Kim
Legislative Attorney
American Law Division
Border Security:
Barriers Along the U.S. International Border
Summary
Congress has repeatedly shown interest in examining and expanding the barriers
being deployed along the U.S. international land border. The 109th Congress passed
a number of laws affecting these barriers, and oversight of these laws and of the
construction process may be of interest to the 110th Congress. The United States
Border Patrol (USBP) deploys fencing, which aims to impede the illegal entry of
individuals, and vehicle barriers, which aim to impede the illegal entry of vehicles
(but not individuals) along the border. The USBP first began erecting barriers in
1990 to deter illegal entries and drug smuggling in its San Diego sector. The ensuing
14 mile-long San Diego “primary fence” formed part of the USBP’s “Prevention
Through Deterrence” strategy, which called for reducing unauthorized migration by
placing agents and resources directly on the border along population centers in order
to deter would-be migrants from entering the country. In 1996, Congress passed the
Illegal Immigration Reform and Immigrant Responsibility Act which, among other
things, explicitly gave the Attorney General (now the Secretary of the Department of
Homeland Security) broad authority to construct barriers along the border and
authorized the construction of a secondary layer of fencing to buttress the completed
14 mile primary fence. Construction of the secondary fence stalled due to
environmental concerns raised by the California Coastal Commission. In 2005,
Congress passed the REAL ID Act that authorized the Secretary of the Department
of Homeland Security (DHS) to waive all legal requirements in order to expedite the
construction of border barriers. DHS has announced it will use this waiver authority
to complete the San Diego fence. The Secure Fence Act of 2006 directed DHS to
construct 850 miles of additional border fencing. This requirement was subsequently
modified by the Consolidated Appropriations Act, 2008 (P.L. 110-161), which was
enacted into law on December 26, 2007. The Act requires the Secretary of Homeland
Security to construct fencing along not less than 700 miles of the southwest border.
While the San Diego fence, combined with an increase in agents and other
resources in the USBP’s San Diego sector, has proven effective in reducing the
number of apprehensions made in that sector, there is considerable evidence that the
flow of illegal immigration has adapted to this enforcement posture and has shifted
to the more remote areas of the Arizona desert. Nationally, the USBP made 1.2
million apprehensions in 1992 and again in 2004, suggesting that the increased
enforcement in San Diego sector has had little impact on overall apprehensions. In
addition to border fencing, the USBP deploys both permanent and temporary vehicle
barriers to the border. Temporary vehicle barriers are typically chained together and
can be moved to different locations at the USBP’s discretion. Permanent vehicle
barriers are embedded in the ground and are meant to remain in one location.
A number of policy issues concerning border barriers generally and fencing
specifically may be of interest to Congress, including, but not limited, to their
effectiveness, costs versus benefits, location, design, environmental impact, potential
diplomatic ramifications, and the costs of acquiring the land needed for construction.
Contents
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The San Diego Border Primary Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Operation Gatekeeper . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Sandia National Laboratory Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Congressional Border Barrier Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 102 of IIRIRA — Improvement of Barriers at the Border . . . . . . . . 5
Expansion of Waiver Authority under the REAL ID Act . . . . . . . . . . . . . . . 7
The Secure Fence Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
The San Diego Sandia Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
The California Coastal Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Current Status of the San Diego Triple Fence . . . . . . . . . . . . . . . . . . . . . . . 12
The San Diego Fence and USBP Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . 13
Border Barrier Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Steps Prior to Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Environmental Impact Assessments . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Border Fence Construction Process and Funding . . . . . . . . . . . . . . . . . . . . 20
Types of Fences and Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Landing Mat Fencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Sandia Secondary Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Other Border Barriers: Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Permanent Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Temporary Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Current Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Legislation in the 110th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Enacted Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Proposed Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Legislation in the 109th Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Issues For Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Fence Design . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Fence Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Land Acquisition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Diplomatic Ramifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Environmental Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Legal Considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Unintended Consequences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Appendix A. Examples of USBP Border Fencing . . . . . . . . . . . . . . . . . . . . . . . . 42
Appendix B. The San Diego Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Appendix C. Permanent Vehicle Barrier Schematic . . . . . . . . . . . . . . . . . . . . . . 44
Appendix D. Permanent Vehicle Barriers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Appendix E. Data from Figure 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Appendix F. Legal Requirements Waived by DHS for the Construction of the
San Diego Border Fence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Appendix G. Legal Requirements Waived by DHS for the Construction of
Physical Barriers and Roads in the Vicinity of the Barry M. Goldwater
Range in Southwest Arizona . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Appendix H. Legal Requirements Waived by DHS for the Construction of
Physical Barriers and Roads in the Vicinity of the San Pedro Riparian
National Conservation Area in Southeast Arizona . . . . . . . . . . . . . . . . . . . 51
Appendix I. Legal Requirements Waived by DHS for the Construction of
Physical Barriers and Roads in Hidalgo County, Texas . . . . . . . . . . . . . . . 55
Appendix J. Legal Requirements Waived by DHS for the Construction of
Physical Barriers and Roads at Various Project Areas Located in
California, Arizona, New Mexico, and Texas . . . . . . . . . . . . . . . . . . . . . . . 59
List of Figures
Figure 1. Imperial Beach Station Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . 14
Figure 2. Chula Vista Station Apprehensions . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Figure 3. Apprehensions at San Diego Sector Stations, Excluding Imperial
Beach and Chula Vista . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Figure 4. Apprehensions at San Diego Sector Stations and Tucson Sector . . . . 17
List of Tables
Table 1. Border Patrol Tactical Infrastructure Appropriations . . . . . . . . . . . . . . 21
Table 2. DOD Funding for the Southwest Border Fence . . . . . . . . . . . . . . . . . . 23
Border Security: Barriers Along
the U.S. International Border
Background
Within the Department of Homeland Security’s (DHS) Customs and Border
Protection (CBP), the U.S. Border Patrol (USBP) is charged with securing our
nation’s land and maritime borders between official ports of entry (POE) to deter and
interdict terrorists, weapons of mass destruction, and aliens attempting to enter the
country unlawfully. In order to discharge its duties, the USBP deploys personnel,
technology, and tactical infrastructure such as vehicle barriers and fencing. Fencing
is erected on the border to impede the illegal entry of unauthorized aliens, while
vehicle barriers are designed to impede the entry of vehicles but do not impede the
entry of individuals. This report will analyze the barriers that are currently being
constructed and maintained along the border by the USBP, including historical and
future cost estimates and the policy issues involved. Because the current debate has
largely focused on the deployment of fencing to the border, this report will focus on
the policy issues surrounding the construction of border fencing. However,
information concerning the kinds of vehicle barriers being deployed at the border will
be provided where available.
Using the broad powers granted to the Attorney General (AG) to control and
guard the U.S. border,1 the USBP began erecting a barrier known as the “primary
fence” directly on the border in 1990 to deter illegal entries and drug smuggling in
its San Diego sector.2 The San Diego fence formed part of the USBP’s “Prevention
Through Deterrence” strategy,3 which called for reducing unauthorized migration by
placing agents and resources directly on the border along population centers in order
to deter would-be migrants from entering the country. The San Diego primary fence
was completed in 1993, covering the first 14 miles of the border from the Pacific
Ocean. The fence was constructed of 10-foot-high welded steel army surplus landing
1 8 U.S.C. §1103 (a)(5). Although the law still cites to the Attorney General, the authorities
granted by this section now appear to rest with the Secretary of DHS. See The Homeland
Security Act of 2002, P.L. 104-208, §§102(a), 441, 1512(d) and 1517 (references to the
Attorney General or Commissioner in statute and regulations are deemed to refer to the
Secretary of DHS).
2 For more information on the San Diego border fence, please refer to CRS Report RS22026,
Border Security: The San Diego Fence, by Blas Nuñez-Neto and Michael John Garcia.
3 For an expanded discussion of the USBP, please refer to CRS Report RL32562, Border
Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.
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mats4 with the assistance of the Corps of Engineers and the California National
Guard. In addition to the 14 miles of primary fencing erected in its San Diego sector,
the USBP maintains stretches of primary fencing in several other sectors along the
southwest border, including Yuma, Tucson, El Centro, and El Paso.
In 1996, Congress passed the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), which, among other things, explicitly gave the Attorney
General broad authority to construct barriers along the border and authorized the
Immigration and Naturalization Service (INS) to construct a secondary layer of
fencing to buttress the completed 14 mile primary fence.5 Construction of the
secondary fence stalled after 9.5 miles had been completed due to environmental
concerns raised by the California Coastal Commission (CCC). In 2005, Congress
passed the REAL ID Act, which, among other things, authorized the Secretary of the
Department of Homeland Security (DHS) to waive all legal requirements to expedite
the construction of border barriers.6 In 2006, Congress passed the Secure Fence Act,
which, among other things, directed DHS to construct five separate stretches of
fencing along the southern border totaling 850 miles.7 This requirement was
modified by provisions in Division E of H.R. 2764, the Consolidated Appropriations
Act, 2008 (P.L. 110-161), which was enacted into law on December 26, 2007. The
Secretary of Homeland Security is now required to construct reinforced fencing along
not less than 700 miles of the southwest border, in locations where fencing is deemed
most practical and effective.
In addition to border fencing, the USBP deploys both permanent and temporary
vehicle barriers at the border. Vehicle barriers are meant to stop the entry of
vehicles, but not people, into the United States. Temporary vehicle barriers are
typically chained together and can be moved to different locations at the USBP’s
discretion. Permanent vehicle barriers are embedded in the ground and are meant to
remain in one location. The USBP is currently erecting a 150 mile stretch of vehicle
barriers in conjunction with the National Park Service near Yuma, Arizona.
The San Diego Border Primary Fence
The USBP’s San Diego sector extends along the first 66 miles from the Pacific
Ocean of the international border with Mexico, and covers approximately 7,000
square miles of territory. Located north of Tijuana and Tecate, Mexican cities with
a combined population of more than two million people, the sector features no
4 U.S. Government Accountability Office, Border Control — Revised Strategy Is Showing
Some Positive Results, GAO/GGD-95-30, January 31, 1995. (Hereafter referred to as GAO
Report 95-30.)
5 See P.L. 104-208, Div. C. IIRIRA was passed as part of the Omnibus Consolidated
Appropriations Act of 1997.
6 P.L. 109-13.
7 From CBP Congressional Affairs, September 25, 2006.
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natural barriers to entry by unauthorized migrants and smugglers.8 As a result of this
geographical reality and in response to the large numbers of unauthorized aliens
crossing the border in the area, in 1990 the USBP began erecting a physical barrier
to deter illegal entries and drug smuggling. The ensuing “primary” fence covered the
first 14 miles of the border, starting from the Pacific Ocean, and was constructed of
10-foot-high welded steel.9
Operation Gatekeeper
The primary fence, by itself, did not have a discernible impact on the influx of
unauthorized aliens coming across the border in San Diego. As a result of this,
Operation Gatekeeper was officially announced in the San Diego sector on October
1, 1994. The chief elements of the operation were large increases in the overall
manpower of the sector, and the deployment of USBP personnel directly along the
border to deter illegal entry. The strategic plan called for three tiers of agent
deployment. The first tier of agents was deployed to fixed positions on the border.
The agents in this first tier were charged with preventing illegal entry, apprehending
those who attempted to enter, and generally observing the border. A second tier of
agents was deployed north of the border in the corridors that were heavily used by
illegal aliens. The second tier of agents had more freedom of movement than the first
tier and were charged with containing and apprehending those aliens who made it
past the first tier. The third tier of agents were typically assigned to man vehicle
checkpoints further inland to apprehend the traffic that eluded the first two tiers. As
the Department of Justice Inspector General report notes, “given Gatekeeper’s
deterrence emphasis, many agents were assigned to first-tier, fixed positions along
the border. These agents were instructed to remain in their assigned positions rather
than chase alien traffic passing through adjacent areas. Prior to Gatekeeper, such
stationary positions were relatively rare.”10
Operation Gatekeeper resulted in significant increases in the manpower and
other resources deployed to San Diego sector. Agents received additional night
vision goggles, portable radios, and four-wheel drive vehicles, and light towers and
seismic sensors were deployed.11 According to the former INS, between October
1994 and June of 1998, San Diego sector saw the following increases in resources:
! USBP agent manpower increased by 150%;
! Seismic sensors deployed increased by 171%;
! Vehicle fleet increased by 152%.
! Infrared night-vision goggles increased from 12 to 49;
8 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An
Investigation Into Allegations of Fraud and Misconduct, July 1998, available at
[http://www.usdoj.gov/oig/special/9807/gkp01.htm#P160_18689].
9 GAO Report 95-30.
10 U.S. Department of Justice, Office of the Inspector General, Operation Gatekeeper: An
Investigation Into Allegations of Fraud and Misconduct, July 1998, at [http://www.usdoj.
gov/oig/special/9807/index.htm]. (Hereafter referred to as DOJ-OIG Gatekeeper Report.)
11 DOJ-OIG Gatekeeper Report.
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! Permanent lighting increased from 1 mile to 6 miles, and 100
portable lighting platforms were deployed;
! Helicopter fleet increased from 6 to 10.12
As a result of the increase in resources and the new strategy that were the main
components of Operation Gatekeeper, the USBP estimated in 1998 that the entire 66
miles of border patrolled by the San Diego sector’s agents could be brought under
control in five years.13
Sandia National Laboratory Study
According to CBP, the primary fence, in combination with various USBP
enforcement initiatives along the San Diego border region (i.e., Operation
Gatekeeper), proved to be successful but fiscally and environmentally costly.14 For
example, as unauthorized aliens and smugglers breached the primary fence and
attempted to evade detection, USBP agents were often forced to pursue the suspects
through environmentally sensitive areas. It soon became apparent to immigration
officials and lawmakers that the USBP needed, among other things, a “rigid”
enforcement system that could integrate infrastructure (i.e., a multi-tiered fence and
roads), manpower, and new technologies to further control the border region.
The concept of a three-tiered fence system was first recommended by a 1993
Sandia Laboratory study commissioned by the former Immigration and
Naturalization Service (INS). According to the Sandia study, the use of multiple
barriers in urban areas would increase the USBP’s ability to discourage a significant
number of illegal border crossers, to detect intruders early and delay them as long as
possible, and to channel a reduced number of illegal border crossers to geographic
locations where the USBP was better prepared to deal with them.15 The Sandia study
further noted that segments of the border could not be controlled at the immediate
border due to the ruggedness of the terrain, and recommended the use of highway
checkpoints in those areas to contain aliens after they had entered the country
illegally.16 The study concluded that aliens attempting to enter the United States from
Mexico had shown remarkable resiliency in bypassing or destroying obstacles in their
path, including the existing primary fence, and postulated that “[a] three-fence barrier
12 U.S. Department of Justice, Immigration and Naturalization Service, “Operation
Gatekeeper Fact Sheet,” July 14, 1998.
13 DOJ-OIG Gatekeeper Report.
14 See California Coastal Commission, W 13a Staff Report and Recommendation on
Consistency Determination, CD-063-03, October 2003 [hereinafter “CCC Staff Report”],
at 14-16 (stating that construction of the primary fence significantly assisted the USBP’s
efforts in deterring smuggling attempts via drive-throughs using automobiles and
motorcycles).
15 GAO 95-30, p. 13.
16 GAO 95-30, p. 13.
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system with vehicle patrol roads between the fences and lights will provide the
necessary discouragement.”17
Congressional Border Barrier Legislation
As previously mentioned, the INS constructed the primary fencing in San Diego
using the broad authority granted to the AG in order to guard and control the U.S.
border by the Immigration and Nationality Act (INA).18 In 1996, Congress expressly
authorized the AG to construct barriers at the border for the first time in the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA).19 This legislation
has subsequently been amended on several occasions.
Section 102 of IIRIRA — Improvement of Barriers
at the Border
Section 102 of IIRIRA concerned the improvement and construction of barriers
at our international borders. As originally enacted, § 102(a) appeared to give the
AG20 broad authority 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.” The phrase “vicinity of the United States border” was not defined
in the INA or in immigration regulations. The section also did not stipulate what
specific characteristics would designate an area as one of “high illegal entry.”
As originally enacted, § 102(b) mandated that the AG construct a barrier in the
border area near San Diego. Specifically, §102(b) directed the AG to construct a
three-tiered barrier along the 14 miles of the international land border of the U.S.,
starting at the Pacific Ocean and extending eastward. Section 102(b) ensured that the
AG will build a barrier, pursuant to his broader authority in §102(a), near the San
Diego area, although there is some debate concerning whether IIRIRA required
continuous triple fencing and roads for the entire 14-mile corridor.21 IIRIRA §
102(b) also provided authority for the acquisition of necessary easements, required
certain safety features be incorporated into the design of the fence, and authorized a
17 Peter Andreas, “The Escalation of U.S. Immigration Control in the Post-NAFTA Era,”
Political Science Quarterly, vol. 113, no. 4, winter 1998-1999, p. 595.
18 8 U.S.C. §1103 (a)(5).
19 P.L. 104-208, §102.
20 The Consolidated Appropriations Act, 2008 (P.L. 110-161) amended IIRIRA § 102 to
expressly refer to the Secretary of Homeland Security, rather than the Attorney General.
Although IIRIRA § 102 previously referred to the Attorney General, the authorities granted
by this section nonetheless appeared to rest with the Secretary of DHS following the
enactment of the Homeland Security Act of 2002. See P.L. 104-208, §§102(a), 441, 1512(d)
and 1517 (references to the Attorney General or Commissioner in statute and regulations are
deemed to refer to the Secretary).
21 See CCC, Staff Report, supra note 14, at pp. 7 nt. 2 and 23 nt. 4.
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total appropriation not to exceed $12 million to carry out the section.22 The Secure
Fence Act of 2006 (P.L. 109-367) amended IIRIRA § 102(b) by removing the
specific provisions authorizing construction of the San Diego fence (though not the
provisions concerning fence safety features, easements, or appropriations) and adding
provisions authorizing five stretches of two-layered reinforced fencing, totaling
roughly 850 miles, along the southwest border.23 IIRIRA § 102(b) was again
amended by the Consolidated Appropriations Act, 2008 (P.L. 110-161). The
Secretary of Homeland Security is now required to construct reinforced fencing along
not less than 700 miles of the southwest border, in locations where fencing is deemed
most practical and effective.24 The Consolidated Appropriations Act also amended
IIRIRA § 102(b) to authorize the appropriation of “sums as may be necessary to carry
out this subsection.” Although IIRIRA § 102(b) no longer contains a specific
authorization for the San Diego fence, the project appears permissible under the
general fence authorization contained in IIRIRA §102(a).
As originally enacted, IIRIRA § 102(c) waived the Endangered Species Act
(ESA) of 1973 (16 U.S.C. §§1531 et seq.) and the National Environmental Policy
Act (NEPA) of 1969 (42 U.S.C. §§4321 et seq.), to the extent the AG determined
necessary, in order to ensure expeditious construction of the barriers authorized to be
constructed under §102. The waiver authority in this provision appeared to apply
both to barriers that may be constructed in the vicinity of the border and to the barrier
that was to be constructed near the San Diego area. The INS (and CBP after 2003)
never exercized this original waiver authority, instead choosing to comply with the
NEPA and the ESA. The INS published a Final Environmental Impact Study
pursuant to NEPA and received a non-jeopardy Biological Opinion from the U.S.
Fish and Wildlife Service under the ESA.25 This waiver authority was expanded in
the 109th Congress by the REAL ID Act, which will be discussed in greater detail
subsequently, and DHS has exercised this expanded waiver authority in order to
continue construction of the San Diego border fence, as well as physical barriers and
roads along the southwest border.
Section 102(d) also provided the AG with various land acquisition authorities.
In 2002, Congress authorized the AG to use INS funds to purchase land for
enforcement fences and to construct the fences.26
22 The actual costs associated with constructing the San Diego fence have been considerably
greater than anticipated by IIRIRA and will be discussed in more detail later in this report.
23 For more detailed discussion of the Secure Fence Act, see infra at 29.
24 For more detailed discussion of the amendments made by the Consolidated Appropriations
Act, see infra at 26-27.
25 Department of Homeland Security, Environmental Impact Statement for the Completion
of the 14-mile Border Infrastructure System, San Diego, California (July 2003) [hereinafter
“EIS, San Diego Border Fence”].
26 P.L.107-273, §201(a).
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Expansion of Waiver Authority under the REAL ID Act
As mentioned above, pursuant to the REAL ID Act of 2005 (P.L. 109-13,
Division B),27 the Secretary of DHS was given broad authority to waive legal
requirements that might otherwise delay the construction of the security barriers
described under § 102 of IIRIRA. Specifically, the Secretary of DHS is authorized
to waive all legal requirements necessary to ensure expeditious construction of these
security barriers.28 Such waivers are effective upon publication in the Federal
Register. Federal district courts are provided with exclusive jurisdiction to review
claims alleging that the actions or decisions of the Secretary violate the U.S.
Constitution, and district court rulings may be reviewed only by the Supreme Court.
The scope of this waiver authority is substantial. Whereas IIRIRA had
previously authorized the waiver of NEPA and ESA requirements, the REAL ID Act
authorizes the waiver of all legal requirements determined necessary by the Secretary
for the expeditious construction of authorized barriers, and only allows judicial
review for constitutional claims. This waiver authority appears to apply to all
barriers that may be constructed under IIRIRA — that is, both to barriers constructed
in the vicinity of the border in areas of high illegal entry and to the barrier that is to
be constructed near the San Diego area. Furthermore, these claims can only be
appealed to the Supreme Court (i.e., there is no intermediate appellate review), whose
review is discretionary.
Some have expressed concern with the apparent breadth of the waiver provision
and the limited scope of judicial review of waiver decisions. As passed into law, the
REAL ID Act waiver provision begins with the arguably ambiguous
“notwithstanding any other law” phrase29 and allows the waiver of all “legal
27 For more information on the REAL ID Act, see CRS Report RL32754, Immigration:
Analysis of the Major Provisions of the REAL ID Act of 2005, by Michael John Garcia,
Margaret Mikyung Lee, and Todd Tatelman.
28 As initially introduced as H.R. 418, the REAL ID Act required the Secretary of DHS to
waive all laws necessary to ensure expeditious construction of the security barriers. H.R.
418 was passed by the House as a stand-alone piece of legislation, but was subsequently
attached as an amendment to House-passed H.R. 1268, the emergency supplemental
appropriations bill for FY2005. During conference, language was revised in H.R. 1268, so
that the Secretary was authorized, but not required, to waive all “legal requirements”
(instead of “all laws”) deemed necessary to ensure construction of the security barriers. The
conferees also added provisions to the REAL ID Act which made waiver decisions effective
upon publication in the Federal Register, and permitted federal court review of waiver
decisions only in limited circumstances. The conference version of H.R. 1268 was enacted
on May 11, 2005.
29 Some courts, for instance, have found the “notwithstanding” phrase not dispositive in
determining the preemptive effect of a statute. See, e.g., E.P. Paup v. Director, OWCP, 999
F.2d 1341, 1348 (9th Cir. 1993); Oregon Natural Resources Council v. Thomas, 92 F.3d 792,
796 (9th Cir. 1996). But see Puerto Rico v. M/V Emily S., 132 F.3d 818 (1st Cir. 1997);
Schneider v. United States, 27 F.3d 1327 (8th Cir. 1994).
CRS-8
requirements.” Although the term “legal requirement” is not defined, it cannot grant
the Secretary the authority to unilaterally waive a person’s constitutional rights.30
The provision has been construed by Secretary Chertoff to apply to the waiver
of laws in their entirety, along with regulations and requirements deriving from or
relating to such laws. Congress commonly waives preexisting laws, but the new
waiver provision uses language and a combination of terms not typically seen in law.
Most waiver provisions have contained qualifying language that (1) exempts an
action from other requirements contained in the Act that authorizes the action, (2)
specifically delineates the laws to be waived, or (3) waives a grouping of similar
laws. Also common are waiver provisions that contain reporting requirements or
restrictions which appear to limit their breadth.31 One waiver authority that appears
analogous to that contained in the REAL ID Act is § 203 of the Trans-Alaska
Pipeline Authorization Act, as amended, which authorizes the Secretary of the
Interior to waive all procedural requirements in law related to the construction of the
Trans-Alaska pipeline and limits judicial review to constitutional claims.32
Although some argue that the waiver authority can extend to any law, including
those seemingly unrelated to building a fence (e.g., civil rights or child labor laws),
the provision is tempered by the requirement that the Secretary must determine the
law (subject to the waiver) is necessary “to ensure expeditious construction” of the
barriers. In other words, the Secretary may be confined to laws that, in effect, will
impede the construction of the fence — not those that only tangentially relate to or
do not necessarily interfere with construction. For example, because child labor laws
would not prevent the Secretary from expeditiously constructing the fence, it follows
that the Secretary does not have the authority to waive these protections. This
interpretation is buttressed by the legislative history of the REAL ID Act, which
indicates that several Members called for the waiver provision because of laws that
were complicating and ultimately preventing the completion of the fence.33 The
decision to waive a law, nonetheless, is solely in the Secretary’s discretion. Until
such time that DHS waives an applicable law, however, it must follow all legal
requirements normally imposed on federal agencies.
On September 22, 2005, a notice was issued in the Federal Register indicating
that Secretary Chertoff, acting pursuant to the authority provided under the REAL ID
30 “[T]he Constitution is filled with provisions that grant Congress or the States specific
power to legislate in certain areas,” Justice Black wrote for the Court, but “these granted
powers are always subject to the limitations that they may not be exercised in a way that
violates other specific provisions of the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29
(1968).
31 Some of these waiver provisions grant the President or the head of an Executive agency
the authority to waive a law[s] if deemed necessary in the national interest or in the interest
of national defense. See, e.g., 10 U.S.C. §1107(a); 22 U.S.C. §2375(d); 29 U.S.C. §793; 42
U.S.C. §6212(b); 42 U.S.C. §6393(a)(2); 50 U.S.C. §2426(e). Examples of waiver authority
with a congressional notification element include 15 U.S.C. §719f; 22 U.S.C. §2378; 22
U.S.C. §2371; and 41 U.S.C. §413.
32 P.L. 93-153, Title II, § 203 (1973); 43 U.S.C. §1652(c)-(d).
33 151 Cong. Rec. H557 (daily ed. February 10, 2005).
CRS-9
Act, had exercised waiver authority over various legal requirements in order to
ensure the expeditious construction of the San Diego border fence.34 A listing of
laws waived by the Secretary can be found in Appendix F. A notice was also
published on January 19, 2007, indicating that the Secretary was waiving various
legal requirements in order to ensure the expeditious construction of physical barriers
and roads in the vicinity of U.S. border area known as the Barry M. Goldwater Range
(BMGR), in southwestern Arizona.35 A listing of the federal laws waived by the
Secretary pursuant to this notice can be found in Appendix G.
On October 5, 2007, Defenders of Wildlife and the Sierra Club brought suit in
the U.S. District Court for the District of Columbia seeking a temporary restraining
order enjoining DHS from border fence and road-building activities in the San Pedro
Riparian National Conservation Area, located in the vicinity of the U.S. border in
southeastern Arizona.36 On October 10, 2007, the presiding district court judge issued
a temporary restraining order (TRO) halting fence construction activities in the
Conservation Area, finding the relevant federal agencies had failed to carry out an
environmental assessment as legally required. On October 26, 2007, a notice was
published in the Federal Register indicating that the Secretary of Homeland Security
had exercised waiver authority over various legal requirements in order to ensure the
expeditious construction of physical barriers or roads through the San Pedro Riparian
National Conservation Area (including any and all lands covered by the TRO),37
thereby enabling the DHS to resume fence construction. A listing of the federal laws
waived by the Secretary pursuant to this notice can be found in Appendix H.
Defenders of Wildlife and the Sierra Club subsequently filed an amended complaint
on November 1, 2007, challenging the constitutionality of DHS’s waiver authority.38
On December 18, 2007, the district court issued an opinion rejecting plaintiffs’
34 Dept. of Homeland Security, “Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102
of the REAL ID Act of 2005,” 70 Federal Register 55622-02, September 22, 2005
[hereinafter “DHS Notice”].
35 Dept. of Homeland Security, “Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102
of the REAL ID Act of 2005 and as Amended by the Secure Fence Act of 2006,” 72 Federal
Register 2535-01, January 19, 2007.
36 Defenders of Wildlife v. Bureau of Land Management, Case 1:07-cv-01801-ESH (D.D.C.
2007). Plaintiffs’ request for a temporary restraining order can be viewed at
[http://www.defenders.org/resources/publications/programs_and_policy/in_the_courts/sa
n_pedro_border_wall_tro_filing.pdf].
37 Dept. of Homeland Security, “Determination Pursuant to Section 102 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102
of the REAL ID Act of 2005 and as Amended by the Secure Fence Act of 2006,” 72 Federal
Register 60870-01,October 26, 2007.
38 Plaintiffs’ amended complaint can be viewed at [http://www.defenders.org/resources/
publications/programs_and_policy/in_the_courts/san_pedro_border_wall_amended_
complaint.pdf].
CRS-10
constitutional challenge and granting DHS’s motion to dismiss the case.39
Consequently, the plaintiffs have filed a petition for a writ of certiorari to the U.S.
Supreme Court, which is still pending.
On April 3, 2008, DHS published two separate notices in the Federal Register
indicating that the Secretary of Homeland Security had exercised his waiver authority
over a panoply of legal requirements regarding the construction of the border fence.
The first notice announced the exercise of the waiver authority to ensure the
construction of border fencing in Hidalgo County, Texas. A list of the waived laws
can be found in Appendix I. The other notice waived laws to expedite the
construction of fencing on certain lands along the border located in California,
Arizona, New Mexico, and Texas. Appendix J enumerates the laws waived by the
Secretary for this purpose.
The Secure Fence Act
The Secure Fence Act (P.L. 109-367) was signed into law on October 26, 2006.
The Act directed DHS to construct two-layered reinforced fencing and additional
physical barriers, roads, lighting, cameras, and sensors along five stretches of the
southwest border. CBP has estimated that these stretches of fencing total roughly
850 miles40 of the southern border. The five stretches of the border that DHS was
required to fence were the 20 miles around Tecate, CA; from Calexico, CA to
Douglas, AZ; from Columbus, NM to El Paso, TX; from Del Rio, TX to Eagle Pass,
TX; and from Laredo, TX to Brownsville, TX. The Act designated the roughly 370
mile portion of the fence between Calexico, CA, and Douglas, AZ, a priority area and
directed DHS to ensure that “an interlocking surveillance camera system” is installed
along this area by May 30, 2007, and that the fence is completed in this area by May
30, 2008. The Act also designated a 30-mile stretch around Laredo, TX, as a priority
area and directed DHS to complete this fencing by December 31, 2008.
The requirements enacted by the Secure Fence Act were modified in the 110th
Congress by the Consolidated Appropriations Act, FY2008 (P.L. 110-161), which
was enacted on December 26, 2007. The Act makes a number of modifications to
§102 of IIRIRA, significantly increasing the Secretary of Homeland Security’s
discretion as to where to construct fencing along the southwest border. Whereas the
Secretary was previously required to install roughly 850 miles of reinforced fencing
along five stretches of the southwest border, a more general requirement has now
been imposed on the Secretary to construct reinforced fencing:
along not less than 700 miles of the southwest border where fencing would be
most practical and effective and provide for the installation of additional physical
barriers, roads, lighting, cameras, and sensors to gain operational control of the
southwest border.41
39 Defenders of Wildlife v. Chertoff, Case 1:07-cv-01801-ESH, 2007 U.S. Dist. LEXIS
92648 (D.D.C. December 18, 2007)
40 From CBP Congressional Affairs, September 25, 2006.
41 P.L. 110-161, Div. E, § 564. Unlike under prior law, the Consolidated Appropriations
(continued...)
CRS-11
The Act further specifies that the Secretary of Homeland Security is not required to
install:
fencing, physical barriers, roads, lighting, cameras, and sensors in a particular
location along an international border of the United States, if the Secretary
determines that the use or placement of such resources is not the most
appropriate means to achieve and maintain operational control over the
international border at such location.42
The Act also amends the provisions of IIRIRA §102 concerning fence
construction in priority areas, by requiring the Secretary of Homeland Security to
identify either 370 miles or “other mileage” along the southwest border where
fencing would be most practical and effective, and to complete construction of
fencing in identified areas by December 31, 2008. This language replaces the prior
language of IIRIRA §102 concerning priority areas, which had been added by the
Secure Fence Act.
The Consolidated Appropriations Act does not modify the existing waiver
provision or limitation on judicial review contained in IIRIRA §102, but does impose
new consultation requirements on the Secretary of Homeland Security when carrying
out duties under this section, and conditions appropriations under the Act upon
compliance with these requirements. Specifically, the Secretary is required to consult
with the Secretaries of the Interior and Agriculture, state and local governments,
Indian tribes, and property owners “to minimize the impact on the environment,
culture, commerce, and quality of life” in areas near where fencing is to be
constructed. The Act specifies that this consultation requirement does not create or
negate any right to legal action by an affected person or entity.
The San Diego Sandia Fence
In 1996, construction began on the secondary fence that had been recommended
by the Sandia study with congressional approval. The new fence was to parallel the
fourteen miles of primary fence already constructed on land patrolled by the Imperial
Beach Station of the San Diego sector, and included permanent lighting as well as an
access road in between the two layers of fencing. Of the 14 miles of fencing
authorized to be constructed by IIRIRA, nine miles of the triple fence had been
completed by the end of FY2005. Two sections, including the final three mile stretch
of fence that leads to the Pacific Ocean, have not been finished.
The California Coastal Commission
In order to finish the fence, the USBP proposed to fill a deep canyon known as
“Smuggler’s Gulch” with over two million cubic yards of dirt. The triple-fence
41 (...continued)
Act, as enacted, does not specify that reinforced fencing be “at least 2 layers.” See P.L.
104-208, Div. C, § 102(b), as amended by P.L. 109-367, § 3.
42 Ibid.
CRS-12
would then be extended across the filled gulch. California’s Coastal Commission
(CCC), however, objected to and essentially halted the completion of the fence in
February 2004, because it determined that CBP had not demonstrated, among other
things, that the project was consistent “to the maximum extent practicable” with the
policies of the California Coastal Management Program — a state program approved
under the federal Coastal Zone Management Act (CZMA) (16 U.S.C. §§1451-
1464).43 The CZMA requires federal agency activity within or outside the coastal
zone that affects any land or water use or natural resource of the coastal zone to be
carried out in a manner that is consistent to the maximum extent practicable with the
policies of an approved state management program.44 If a federal court finds a
federal activity to be inconsistent with an approved state program and the Secretary
of DHS (Secretary) determines that compliance is unlikely to be achieved through
mediation, the President may exempt from compliance the activity if the President
determines that the activity is in the “paramount interest of the United States.”45
According to the CCC, CBP did not believe that it could make further
environmental concessions and still comply with IIRIRA. The CCC held that
Congress did not specify a particular design in the IIRIRA, and that CBP failed to
present a convincing argument that the less environmentally damaging alternative
projects it rejected would have prevented compliance with the IIRIRA. Specifically,
the CCC was concerned with the potential for significant adverse effects on (1) the
Tijuana River National Estuarine Research and Reserve; (2) state and federally listed
threatened and endangered species; (3) lands set aside for protection within
California’s Multiple Species Conservation Program; and, (4) other aspects of the
environment. In response to the CCC’s findings, Congress expanded the waiver
authority in the REAL ID Act, described in more detail below, in order to allow DHS
to waive the CZMA, among other things.
Current Status of the San Diego Triple Fence
As previously discussed, DHS announced in September 2005 that it was
applying its waiver authority established by the REAL ID Act to facilitate the
completion of the San Diego fence.46 The military has now begun the process of
upgrading and rebuilding the San Diego border fence. Congress appropriated $31
million in FY2007 for construction of the remaining 4.5 miles of the San Diego
43 See CCC, Staff Report, at 5-7. After California’s Coastal Management Plan was approved
by the National Oceanic and Atmospheric Administration pursuant to the CZMA in 1977,
apparently all federal activities affecting coastal zone resources in California became subject
to the CCC’s regulatory purview.
44 16 U.S.C. §1456(c).
45 16 U.S.C. §1456(c)(1)(B).
46 DHS Notice, supra note 35.
CRS-13
fence.47 DHS has begun construction on the final 4.5 miles of the San Diego fence,
beginning the process of filling in the area known as Smuggler’s Gulch.48
The San Diego Fence and USBP Apprehensions
Apprehension statistics have long been used as a performance measure by the
USBP. However, the number of apprehensions may be a misleading statistic for
several reasons, including the data’s focus on events rather than people49 and the fact
that there are no reliable estimates for how many aliens successfully evade capture.
This makes it difficult to establish a firm correlation between the number of
apprehensions in a given sector and the number of people attempting to enter through
that sector. While caution should be taken when attempting to draw conclusions
about the efficacy of policy initiatives based solely on apprehensions statistics, they
remain the most reliable way to codify trends in illegal migration along the border.
The San Diego fence spans two border patrol stations within the San Diego
sector: Imperial Beach station and Chula Vista station. As previously noted, the
primary fence was constructed in those two stations beginning in FY1990; the
secondary fence was constructed beginning in FY1996. Figure 1 shows the stark
decrease in apprehensions at the Imperial Beach station from FY1992 to FY2004.
The majority of the decrease occurred in the four year period from FY1995 through
FY1998 and coincided with Operation Gatekeeper, which as previously noted
combined the construction of fencing along the border with an increase in agents and
other resources deployed directly along the border. For the period from FY1998 to
FY2004, apprehensions at the Imperial Beach station averaged about 14,000 each
year.
47 H.Rept. 109-699, p. 130.
48 Interview with CBP Congressional Affairs, January 26 , 2006.
49 If the same person is apprehended multiple times attempting to enter the country in one
year, each apprehension will be counted separately by the USBP in generating their
apprehension statistics. This means that apprehension statistics may overstate the number
of aliens apprehended each year.
CRS-14
Figure 1. Imperial Beach Station Apprehensions
250,000
202,
20 17
1 3
200,000
186
18 ,
6 89
8 4
150,000
165,
16 28
2 7
120,
12 63
6 0
3
100,000
74,
74 979
7
50,000
27,
27 865
6
15,
15 832
3
15,
15 97
9 4
7
19,
19 815
1
15,
15 480
8
11,
11 405
0
10,
10 218
1
9,112
9,
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Source: CRS analysis of CBP data.
Figure 2 shows the apprehensions at the Chula Vista station over the same
period of time. The trend in apprehensions at Chula Vista is somewhat similar to
Imperial Beach, with overall apprehensions dropping significantly from FY1992 to
FY2002. Apprehensions increased slightly from FY2002 to FY2004, but remain far
below their early 1990s levels. Interestingly, the rate of decline in Chula Vista in the
mid-1990s lagged behind the rate of decline in Imperial Beach station during this
period. This suggests that as enforcement ramped up in Imperial Beach station,
unauthorized migration shifted westward to Chula Vista. From FY1992 to FY1998,
for example, apprehensions decreased by 92% in Imperial Beach, but only by 54%
in Chula Vista. From FY1998 through FY2001, apprehensions leveled off in Imperial
Beach, averaging around 16,000 a year, but continued to decline at Chula Vista, from
72,648 in FY1998 to 3,080 in FY2002. Overall, the trend indicates the following:
as enforcement measures, in this case including fencing, were deployed — first
focusing on Imperial Beach, and later extending to Chula Vista — the flow of
unauthorized migration pushed eastward. The drop in apprehensions occurred first
in Imperial Beach, and then later pushed eastward to Chula Vista.
CRS-15
Figure 2. Chula Vista Station Apprehensions
160,000
156,
15 27
6,
3
27
158,
15 9
8, 52
5
141,
14 09
1,
6
09
140,000
120,000
111,
11 41
1,
3
41
100,000
107,
10 87
7,
2
87
72,
72 648
6
80,000
67,8
67 0
,8 4
60,000
40,000
27,0
27 85
,0
19,
19 45
4 3
20,000
9,92
9,
3
92
3,08
3,
0
4,545
080
4,54
9,62
9,
7
62
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Source: CRS analysis of CBP data.
Figure 3 shows the aggregate apprehensions made at the other San Diego sector
stations, excluding Imperial Beach and Chula Vista. Those stations are El Cajon,
Campo, San Clemente, Temecula, and Brown Field. Figure 3 shows that at the time
apprehensions were beginning to decline in Imperial Beach (starting in FY1995) and
Chula Vista (starting in FY1996), apprehensions at other San Diego sector stations
almost doubled. This suggests that as enforcement efforts increased in the two
westernmost stations, including the installation of fencing and the deployment of
additional agents, the flow of illegal migration pushed eastward to the other stations
in the San Diego sector. While apprehensions declined in the non-fenced stations of
the San Diego sector from FY1997 to FY2001, the rate of decline was not as steep
as the rate of decline at the stations where fencing was deployed. Overall, the decline
in apprehensions in the rest of the San Diego sector has lagged behind the decreases
in Imperial Beach and Chula Vista: from FY1992 to FY2004, apprehensions in the
other San Diego sector stations decreased by 42%, compared to decreases of 95% in
Imperial Beach and 94% in Chula Vista. In FY2003 and FY2004, apprehensions
increased slightly in the rest of San Diego sector, possibly in response to the
increasing USBP focus on the Tucson sector in Arizona.50 It seems, then, that the
installation of border fencing, in combination with an increase in agent manpower
50 For more information on overall apprehension trends, please refer to CRS Report
RL32562, Border Security: The Role of the U.S. Border Patrol, by Blas Nuñez-Neto.
CRS-16
and technological assets, has had a significant effect on the apprehensions made in
the San Diego sector. This in turn suggests that fewer unauthorized aliens are
attempting to cross the border in the San Diego sector as a result of the increased
enforcement measures, including fencing, manpower, and other resources, that were
deployed to that sector.
Figure 3. Apprehensions at San Diego Sector Stations,
Excluding Imperial Beach and Chula Vista
300,000
297,423
42
262,
26 505
250,000
210,
21 129
200,000
204,456
45
189,
1
321
160,781
150,000
155,386
38
140,640
113,
1
866
100,000
119,
119 293
2
96,7
96, 52
5
85,8
85, 15
1
87,1
87 95
9
50,000
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Source: CRS analysis of CBP data.
Figure 4 shows overall San Diego sector apprehensions, breaking out the
Imperial Beach and Chula Vista stations, and compares them to the apprehensions
made at the Tucson sector between FY1992 and FY2004. The data used to create
this graph can be seen presented in table form in Appendix E. Figure 4 shows that
in FY1992, Imperial Beach and Chula Vista accounted for 64% of all apprehensions
made in the San Diego sector; by FY2004 the two stations accounted for only 14%
of all apprehensions made in the sector. However, as apprehensions declined in
Imperial Beach and Chula Vista stations and San Diego sector as a whole over the
late 1990s and early 2000s, apprehensions in the Tucson sector in Arizona increased
significantly over this period. Over the 12-year period between 1992 and 2004,
overall apprehensions in the San Diego sector declined by 76%. However, as
apprehensions were decreasing in the San Diego sector, they were increasing in other
sectors further east. This increase was most notable within the Tucson sector in
Arizona, where apprehensions increased six-fold (591%) between FY1992 and
FY2004. As Figure 4 shows, overall apprehensions in the San Diego and Tucson
sectors combined have averaged roughly 620,000 yearly since FY1992, with the San
Diego sector accounting for the lion’s share during the early 1990s and the Tucson
CRS-17
sector accounting for the majority in the early 2000s. This provides further indication
that the construction of the fence, combined with the increases in manpower in the
San Diego sector, changed the patterns of migration for unauthorized aliens
attempting to enter the country illegally from Mexico.
Figure 4. Apprehensions at San Diego Sector Stations
and Tucson Sector
800,000
700,000
600,000
500,000
400,000
300,000
200,000
100,000
0
FY1993
FY1995
FY1997
FY1999
FY2001
FY2003
FY1992
FY1994
FY1996
FY1998
FY2000
FY2002
FY2004
Tucson
Imperial Beach Station
Chula Vista Station
Other San Diego Sector Stations
Source: CRS analysis of CBP data.
As Figures 1-4 show, the increased deployment of agents, infrastructure,
technology, and other resources within the San Diego sector has resulted in a
significant decline in the number of apprehensions made in that sector. Nationally,
apprehensions made by the USBP grew steadily through the late 1990s, only to
decline in the early 2000s. However, in 1992 the USBP apprehended 1.2 million
unauthorized aliens; in 2004, the USBP also apprehended 1.2 million unauthorized
aliens.51 While the increased enforcement in the San Diego sector has resulted in a
shift in migration patterns for unauthorized aliens, it does not appear to have
decreased the overall number of apprehensions made each year by USBP agents. As
previously noted, apprehensions statistics can be somewhat misleading, but they
nevertheless remain the best way to codify trends in unauthorized migration along the
border. However, it is impossible to ascertain solely by looking at apprehensions
51 CRS analysis of CBP data.
CRS-18
statistics how many unauthorized aliens are attempting to enter the country illegally,
because it is unclear how many individuals evade being captured by the USBP each
year.
Border Barrier Construction
The USBP has been constructing and maintaining barriers along the
international land border since 1991. These barriers have historically been limited
to selected urban areas as part of the USBP’s overall strategy of rerouting illegal
migration away from urban areas towards geographically isolated areas where their
agents have a tactical advantage over border crossers. Two main types of border
fencing have been constructed: primary fencing located directly on the border along
several urban areas; and Sandia fencing, also known as secondary or triple fencing,
in San Diego. Additionally, the USBP has begun installing permanent vehicle
barriers in various segments of the border. Vehicle barriers are designed to impede
the entry of vehicles while allowing individuals and animals to cross the border
freely. As such, they have a lower environmental footprint than border fencing.
Steps Prior to Construction
Several considerations come into play whenever the USBP contemplates
construction along the border. There are a number of steps that must be taken before
the construction process can begin. These steps include, but are not limited to,
determining what the environmental impact of the construction will be; acquiring the
land needed for the fence; acquiring the materials that will be used for the fence; and
securing the assistance of the Corps of Engineers and the National Guard for the
construction process. The role the Corps of Engineers plays in assisting the USBP
with th entire process of constructing border fencing, including acquiring materials,
will be discussed subsequently in the construction process section. This section will
cover the issues associated with environmental assessments and land acquisition.
Environmental Impact Assessments. Land along the southwest border
supports a number of animals and plants and provides habitat to many protected
species. The U.S. Fish and Wildlife Service, for example, reported that a total of 18
federally protected species have the potential to be found along certain sections of the
California border.52 In Arizona, at least 39 federally endangered, threatened, or
candidate species can be found living along its border.53 More than 85% of the lands
directly along the Arizona border are federal lands, much of it set aside to protect
wilderness and wildlife. For example, the Organ Pipe Cactus National Monument,
the Cabeza Prieta National Wildlife Refuge, and the Buenos Aires National Wildlife
Refuge can all be found adjacent to the border. The southwest border region is
52 EIS, San Diego Border Fence.
53 Defenders of Wildlife, On the Line — The Impacts of Immigration Policy on Wildlife and
Habitat in the Arizona Borderlands, 2006, p. 26. (Hereinafter, Defenders of Wildlife, On
the Line.)
CRS-19
considered a fragile environment, susceptible to harm from even the slightest changes
to the ecosystem.54
Many are concerned with the geographic footprint and subsequent
environmental impacts of both illegal immigration and USBP activities. Until the
early 1990s, the USBP’s enforcement activities along the border were nominal and
the environmental consequences of illegal crossings went largely unnoticed. As
illicit trafficking escalated, however, so did the USBP’s activities and enforcement
footprint, including the construction of fencing and other barriers. Although the San
Diego fence reportedly reduced the number of aliens attempting to drive across the
open border (and consequently the enforcement footprint to stop such activities), it
did little to block the flow of foot traffic.55 Illegal aliens often damage habitat by
cutting vegetation for shelter and fire, causing wildfires, increasing erosion through
repeated use of trails, and discarding trash.56 Environmentalists claim that the
USBP’s enforcement activities, including the pursuit of illegal aliens, use of off-road
vehicles and construction of roads and fences, compound the degradation.57 The
REAL ID Act will allow the DHS Secretary to waive any legal requirements needed
to expedite the construction of border fencing. Until such time that DHS waives an
applicable law, however, it must follow all legal requirements normally imposed on
federal agencies, including, for example, NEPA documentary requirements.
Land Acquisition. The construction of a fence along the border necessarily
requires the government to acquire some type of interest in the land. The San Diego
border fence, for example, is to extend approximately 150-feet north of the
international boundary.58 Current immigration law authorizes the Secretary of DHS
to contract for and buy any interest in land adjacent to or in the vicinity of the
international land border when the Secretary deems the land essential to control and
guard the border against any violation of immigration law.59 It also authorizes the
Secretary to accept any interest in land along the border as a gift and to commence
condemnation proceedings if a reasonable purchase price can not be agreed upon.
With respect to the San Diego border fence, the law requires the Secretary to
promptly acquire such easements as necessary to implement the statute.60 If DHS
exercises its eminent domain powers, it must provide just compensation as required
54 Eilene Zimmerman, SFGate.com, Border protections imperil environment — Last
wilderness area south of San Diego could be damaged, February 27, 2006, at
[http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/27/MNG2GHFBFL1.DTL
&type=printable].
55 EIS, San Diego Border Fence, at 1-10.
56 Id. at 1-11.
57 See generally, Defenders of Wildlife, On the Line, p. 26.
58 Letter from Peter C. Sornsen, Acting Field Supervisor, U.S. Dept. of the Interior, to James
Caffrey, Acting Director, Facilities & Engineering Division, Immigration and Naturalization
Service, Re: Endangered Species Consultation for the Proposed 14-Mile Border
Infrastructure System (July 1, 2003) (on file with author).
59 8 U.S.C. §1103(b).
60 8 U.S.C. §1101 note (b)(2).
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by the Constitution. In the case of the San Diego fence, construction of the final 4.5
miles continues to be held up as DHS acquires the necessary land.
DHS is authorized to acquire new interests in lands under the INA. However,
the federal government may already own some land along the border pursuant to
presidential proclamations made long ago. In 1907, President Roosevelt reserved
from entry and set apart as a public reservation all public lands within 60-feet of the
international boundary between the United States and Mexico within the State of
California and the Territories of Arizona and New Mexico.61 Known as the
“Roosevelt Reservation,” this land withdrawal was found “necessary for the public
welfare ... as a protection against the smuggling of goods.” The proclamation
excepted from the reservation all lands, which, as of its date, were (1) embraced in
any legal entry; (2) covered by any lawful filing, selection or rights of way duly
recorded in the proper U.S. Land Office; (3) validly settled pursuant to law; or (4)
within any withdrawal or reservation for any use or purpose inconsistent with its
purposes. A similar reservation was made by President Taft in 1912, for all public
lands laying within 60-feet of the boundary line between the United States and
Canada.62 This proclamation states that the customs and immigration laws of the
United States could be better enforced and the public welfare thereby advanced by
the retention in the federal government of complete control of the use and occupation
of lands abutting the international boundary lines. The proclamation also provides
exceptions similar to those described in the Roosevelt Reservation.
Border Fence Construction Process and Funding
CBP has, in the past, constructed the majority of border fencing under a
Memorandum of Agreement (MOA) with the ECSO (Engineering and Construction
Support Office) of the U.S. Army Corps of Engineers (Corps). ECSO manages
several components of the construction process for CBP, including planning and
acquisition of real estate; drafting the environmental protection plan; designing the
project and formulating the engineering costs; overseeing the construction process;
and enforcing the appropriate warranties. On most of the tactical infrastructure
projects, National Guard units and military units from the Department of Defense
(DOD) Joint Task Force North provide the labor. DOD uses these projects as part
of their training regimen, leveraging their ability to deploy tactical infrastructure and
thereby providing zero labor costs to CBP.63 The funding for land acquisition and
61 35 Stat. 2136. The reservation also extends sixty-feet from the margin of any river that
forms the international boundary. This language, however, does not apply to lands that abut
the Rio Grande River in Texas since there are no federal “public lands” in Texas. Title to
most of the western territories was obtained by the United States from foreign powers
through purchase and treaty. Generally, the terms of acquisition provided for recognition of
the few existing private property rights, but granted title over the vast non-private lands to
the United States. Texas was an exception; it was admitted by annexation in 1845, and
retained title to all its public lands. See United States v. Denver, 656 P.2d 1, 5 n.2 (Co.
1982).
62 37 Stat. 1741.
63 Department of Homeland Security, Congressional Budget Justifications for Fiscal Year
(continued...)
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fence materials comes out of the CBP construction account within the DHS
appropriation. Specific funding for fence construction is rarely identified in the
conference reports, though it typically has been identified within the DHS (and
previously the former INS) Congressional Budget Justifications.64 Table 1 shows the
overall amount appropriated for the USBP construction account, and the specific
amounts identified for tactical infrastructure within that account, since FY1996.
Appropriations for fencing and other border barriers has increased markedly over the
past five years, from $6 million in FY2002 to $647 million in FY2007. The FY2008
appropriation, according to CBP, would include $196 million for fence construction.
Table 1. Border Patrol Tactical Infrastructure Appropriations
(millions of dollars)
Construction Account
Tactical Infrastructure
Fiscal Year
(total)
Construction
2008
1,225a
196a
2007
1,500b
647b
2006
298
93
2005
92
15
2004
89
14
2003
235
23
2002
128
6
2001
133
3
2000
100
9
1999
90
4
1998
76
8
1997
10
4
1996
25
4
Sources: For FY2006, the amounts appropriated for construction and tactical infrastructure were
identified from the FY2007 DHS Congressional Budget Justifications. For FY2004-FY2005, the
amounts appropriated for construction and tactical infrastructure were identified from the FY2006
DHS Congressional Budget Justifications. FY2003 construction and tactical infrastructure funding
was identified from the FY2005 DHS Congressional Budget Justifications. FY1996-FY2002 tactical
infrastructure funding was identified in the FY2003 INS Congressional Budget Justifications; funding
for FY1998-FY2000 includes San Diego fencing as well as fencing, light, and road projects in El
Centro, Tucson, El Paso, and Marfa. FY2001 and FY2002 construction funding identified from the
63 (...continued)
2007, pg. CBP Construction 20. Hereafter referred to as DHS FY2007 Justifications.
64 FY2006 is an exception. Within the conference report, $35 million was identified for the
Southwest Border Fence and $35 million was identified for the construction of vehicle
barriers and other border infrastructure in Tucson sector. H.Rept. 109-241.
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FY2002 INS Congressional Budget Justifications. FY2000 construction funding identified from the
FY2001 INS Congressional Budget Justifications and H.Rept. 107-278. FY1999 construction funding
identified from P.L. 105-277. FY1998 construction funding identified from P.L. 105-119. FY1997
funding identified from P.L. 104-208. FY1996 construction funding identified from P.L. 104-134.
Notes: In FY2003 immigration inspections from the former INS, Customs inspections from the
former customs service, and the USBP were merged to form the Bureau of Customs and Border
Protection within DHS. As a result of this the data for years prior to FY2003 may not be comparable
with the data for FY2004 and after. The USBP construction account has been used to fund a number
of projects at the border, including fencing, vehicle barriers, roads, and USBP stations and
checkpoints. In FY2007, the appropriations committee created a new Border Security Fencing,
Infrastructure, and Technology (BSFIT) account within the CBP. This account funds the construction
of fencing, other infrastructure such as roads and vehicle barriers, and border technologies such as
cameras and sensors. Border fencing and infrastructure construction was transferred from the USBP
Construction account to the new BSFIT account.
a. In FY2008, Congress appropriated $1,225 million for BSFIT in the Consolidated Appropriations
Act (P.L.110-161). According to CBP, $196 million will be used for border fencing.65
b. The BSFIT appropriation in the FY2007 DHS Appropriation Act was $1.2 billion (see H.Rept. 109-
699). Combined with the $300 million already appropriated in the emergency supplemental,
the overall BSFIT appropriation for FY2007 was $1.5 billion. The appropriators did not offer
guidance on how this funding was to be allocated between these different purposes. According
to CBP, $647 million will be obligated for fencing in FY2007.66
In FY2009, the Administration requested $775 million for the deployment of
SBInet-related67 technologies and infrastructures in FY2009, a decrease of $450
million over the FY2008-enacted level of $1,225 million.68 Within the FY2009
request, the Administration is proposing to allocate $275 million for developing and
deploying additional technology and infrastructure solutions to the southwest border.
An additional $410 million is requested for operations and maintenance of the
cameras, sensors, and fencing that will have been constructed by the end of calendar
year 2008 with prior-year funding.69 It does not appear that this request would
include funding for new fencing or vehicle barriers at the border. Instead, the
Administration notes that this funding will cover the costs associated with operating
and maintaining the technologies that have been deployed to the border as part of the
SBInet program, as well as the 370 miles of fencing and 300 miles of vehicle
65 From e-mail correspondence with CBP, July 27, 2007.
66 From e-mail correspondence with CBP, July 19, 2007.
67 SBInet is the technological and infrastructure component of the Secure Border Initiative
(SBI), a multifaceted approach to securing the border. In its FY2007 budget submission,
DHS asserted that it had “developed a three-pillar approach under the SBI that will focus
on controlling the border, building a robust interior enforcement program, and establishing
a Temporary Worker Program.” DHS FY2007 Justification, p. CBP S&E 4.
68 The FY2008 total enacted appropriation of for SBInet was $1,225 million; this total
included an emergency appropriation of $1,053 million. However this may be somewhat
misleading because the FY2008 request for the account, which had been fully funded by
both the House and Senate Committees on Appropriation, was $1,000 million. The amount
of additional funding (above the request) provided in FY2008 was thus $225 million and not
$1,053 million.
69 DHS FY2009 Justification, p. CBP BSFIT 11.
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barriers, which are scheduled to be completed by the end of calendar year 2008 with
funding appropriated in FY2007 and FY2008. Most of the fencing that will be
constructed in 2008 will be contracted out; the Corps and the National Guard will be
involved mainly in the project to finish the San Diego fence.70
Under the MOA, once CBP purchases the materials and acquires the land, the
Corps of Engineers undertakes the engineering studies and provides the manpower
and machinery that are used to install the fencing. The actual manpower is typically
provided by the State National Guard (the California National Guard, for example,
constructed much of the San Diego fence), although occasionally the military, and
sometimes the USBP, are involved in the construction.71 The Corps of Engineers
funding comes from the Department of Defense Drug Interdiction and Counter-Drug
Activities Account. Table 2 shows the funding for the “Southwest Border Fence”
sub-account within this DOD Account, from FY1997 to FY2006. As previously
noted, however, much of the new fence construction currently taking place is being
done by private contractors.
Table 2. DOD Funding for the Southwest Border Fence
(millions of dollars)
Fiscal Year
DOD Funding
2008
1.2
2007
N/A
2006
3.5
2005
N/A
2004
4.0
2003
4.7
2002
5.0
2001
5.0
2000
4.0
1999
3.0
1998
4.0
1997
5.0
Source: FY2008, H.Rept. 110-434; FY2007, H.Rept. 109-676; FY2006, H.Rept. 109-359; FY2005,
H.Rept. 108-622; FY2004, H.Rept. 108-283; FY2004, H.Rept. 107-732; FY2002, H.Rept. 107-333;
FY2002, H.Rept. 106-945; FY2000, H.Rept. 106-371, FY1999, H.Rept. 105-746; FY1998, H.Rept.
105-265; FY1997, H.Rept. 104-724.
Notes: N/A means not available. No funding was identified for border fencing in the FY2007 DOD
Conference report, H.Rept. 109-676. The House Committee had recommended $8 million for this
activity in H.Rept. 109-504, while the Senate Committee had not recommended any funding for it in
70 From conversations with CBP Congressional Affairs, March 13, 2008.
71 From interviews with CBP, November 30, 2005 and September 13, 2006, and the Corps
of Engineers, November 29, 2005.
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S.Rept. 109-292. FY2005 funding for the “Southwest Border Fence” sub-account was also not
identified in the DOD Conference Report, H.Rept. 108-622. The House Committee had recommended
$7 million for this sub-account in H.Rept. 108-553; while the Senate Committee had not recommended
any funding for it in S.Rept. 108-284.
Types of Fences and Barriers
The USBP currently uses three main types of barriers along the border: primary
fencing immediately on the international border, Sandia fencing behind the primary
fencing, and vehicle barriers meant to stop vehicles, but not people on foot, from
traversing the border. While other forms of primary fencing, such as bollard
fencing72 and picket fencing,73 have been constructed in limited areas,74 historically
the agency has largely focused on using the landing mat fencing as a primary fence
and the Sandia fence as a secondary fence.
Landing Mat Fencing. Landing mat fencing is composed of army surplus
carbon steel landing mats which were used to create landing strips during the
Vietnam War. The landing mats form panels 12 feet long, 20 inches wide, and 1/4
inch thick, which are welded to steel pipes buried 8 feet deep every 6 feet along the
fence. Each mile of fencing requires the use of 3,080 panels.75 There are about 5
miles of surplus landing mat fencing remaining as of 2006.76 According to the
USBP, sites that feature landing mat fencing include the following USBP stations:
Campo, CA; Yuma, AZ; Nogales, AZ; Naco, AZ; Douglas, AZ, and El Paso, TX.77
In a 1999 study which was commissioned by the INS and performed under a
Memorandum of Understanding, the Corps of Engineers predicted that construction
costs for the landing mat fencing would range from $388,005 to $431,117 per mile.78
72 Bollard fencing is comprised of vertical installations of solid concrete, metal spheres, or
large posts, embedded into the ground at small enough intervals as to be impassable. Bollard
fencing is difficult to compromise but expensive to install. See Appendix A for a depiction
of bollard fencing.
73 Picket fencing is comprised of metal stakes set sufficiently close together as to be
impassable. See Appendix A for a depiction of picket fencing.
74 Roughly 13 miles of these alternate forms of fencing have been constructed to date,
according to an interview with CBP Congressional Affairs on September 13, 2006.
75 U.S. Army Corps of Engineers, Construction Engineering Research Laboratories,
Engineering Life-Cycle Cost Comparison Study of Barrier Fencing Systems, USACERL
Technical Report 99/28, February 1999, p. 14. Hereafter referred to as Corps of Engineers
Study.
76 Interview with CBP Congressional Affairs, September 13, 2006.
77 Telephone conversation with CBP, November 30, 2005.
78 The Corps of Engineers used 1997 dollars in their study. For the purposes of this report,
the numbers predicted by the Corps were adjusted to 2005 dollars using the Gross Domestic
Product (GDP) deflator, available at [http://www1.jsc.nasa.gov/bu2/inflateGDP.html]. This
website appears to be no longer operating; however, GDP deflator tables are also published
by the Bureau of Economic Adjustment (BEA) at the Department of Commerce and are
(continued...)
CRS-25
This estimate includes the cost of materials, despite the fact that the landing mat
fencing constructed to date has been comprised of army-surplus panels acquired by
CBP at no cost. As previously noted, however, only about 5 miles of surplus landing
mat fencing material remains available. Maintenance costs per year could vary
widely depending on the number of breaches the fence undergoes. Low levels of
damage to the fence would result in low annual repair costs, while a large number of
breaches could result in stretches of fencing needing to be replaced. Per mile, the
Corps of Engineers estimated that yearly maintenance costs would probably range
from $1,742 to $17,753.79 The Corps of Engineers noted that the net present value80
of the fence after 25 years of operation would range from $5.4 million and $8.3
million per mile depending on the amount of damage sustained by the fencing each
year.
Sandia Secondary Fence. The secondary fence proposed by the Sandia
study has only been constructed over roughly 9.5 miles of the 14 miles in the original
plan due to environmental concerns voiced by the California Coastal Commission.
As previously discussed, P.L. 109-13 included language that will allow waiver of all
legal requirements determined necessary by the Secretary of DHS for the expeditious
construction of authorized barriers and only allows judicial review for constitutional
claims. On September 14, 2005, DHS announced it is applying its new waiver
authority to complete the San Diego fence.81 DHS is currently estimating that it will
cost an additional $66 million to finish the San Diego fence, bringing overall costs
for this 14 mile-long project to $127 million. Additionally, DHS notes that it will use
a mix of DOD resources and private contractors to finish the fence, and that the cost
of using contractors is included in the request.82
The Sandia fence, as it has been constructed in the San Diego sector, is a
secondary fence constructed behind the primary fence. Enough space is left between
78 (...continued)
available at [http://bea.gov/bea/dn/nipaweb/TableView.asp?SelectedTable=13&FirstYear
=1997&LastYear=2005&Freq=yr]. The actual predictions made by the Corps for
constructing and maintaining primary fencing, in 1997 dollars, were $341,584 to $379,538
per mile for construction costs, and $1,534 to $15,629 per mile per year in maintenance
costs. The 25-year life-cycle costs for constructing and maintaining landing mat fencing
were predicted to range between $4,725,572 and $7,340,098 per mile in 1997 dollars.
79 Corps of Engineers Study, p. 21.
80 Net present value is a term used by the Corps of Engineers in their life cycle costs
analyses for construction projects. It amortizes the future costs of a project and shows what
the entire costs of the project will be. In this case, these numbers represent 25 year
predictions and have been adjusted from 1997 dollars to 2005 dollars using a GDP Deflator
81 DHS published a Federal Register notice on September 22, 2005, declaring the waiver of,
in their entirety, (1) the National Environmental Protection Act (42 U.S.C. 4321 et seq.);
(2) the Endangered Species Act (16 U.S.C. 1531 et seq.); (3) the Coastal Zone Management
Act (16 U.S.C. 1451 et seq.); (4) the Federal Water Pollution Control Act (33 U.S.C. §§1251
et seq.); (5) the National Historic Preservation Act (16 U.S.C. §§470 et seq.); (6) the
Migratory Bird Treaty Act (16 U.S.C. §§703 et seq.); (7) the Clean Air Act (42 U.S.C.
§§7401 et seq.); and (8) the Administrative Procedure Act (5 U.S.C. §§551 et seq.).
82 DHS FY2007 Justifications, p. CBP Construction 18.
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the two fences to accommodate an access road. The secondary fence is an angled
two-piece fence. The fence is vertical up to ten feet high, and then extends out at an
angle towards the climber. This prevents climbing by using gravity and the weight
of the climber against them. The Corps of Engineers estimated that Sandia fencing
costs per mile would range from $785,679 to $872,977 for construction and $953 to
$7,628 per mile yearly for maintenance. Additionally, the Corps of Engineers study
notes that the Sandia fence would possibly need to be replaced in the fifth year of
operation and in every fourth year thereafter if man-made damage to the fence was
“severe and ongoing.” For this reason, in the study the Corps of Engineers noted that
the net present value of the fence after 25 years of operation, per mile, would range
from $11.1 million to $61.6 million.83
Other Border Barriers: Vehicle Barriers
The USBP utilizes various different types of barriers to impede vehicles from
crossing into the United States from Mexico. Some of these barriers are temporary
and can be moved to different locations when needed, others are permanent barriers.
The main purpose of vehicle barriers is to prevent smugglers from easily driving their
vehicles across the border.
Permanent Vehicle Barriers. Permanent vehicle barriers, as their name
suggests, are not designed to be moved but rather are permanent installations.
Permanent vehicle barriers are typically steel posts, or bollards, that are excavated 5
feet deep and inserted into a poured concrete base. The posts alternate in above-
ground height in order to dissuade individuals from forming a ramp over the barrier.
They are spaced so as to allow foot and animal traffic but not vehicular traffic. The
USBP recently began building permanent vehicle barriers in the Yuma sector, with
a substantial stretch slated to be built along the Organ Pipe Cactus National
Monument. When linked with the 30 miles of vehicle barriers built by the National
Park Service, a USBP spokesman reportedly noted that the total 123 mile length of
the project “will form the largest continuous physical barrier along the border in the
nation.”84
In the FY2007 DHS Congressional Budget Justifications, DHS notes that the
Yuma vehicle barrier project would take until at least 2010 (and possibly longer) to
complete if CBP continued to use the Corps of Engineers and other military
personnel to construct the barriers. Instead, CBP proposes hiring commercial
contractors to build 39 miles of vehicle barriers in the Yuma sector, or almost half
of the project’s 93 mile total.85 CBP is projecting that the project will be completed
83 The numbers used by the Corps of Engineers were cited in 1997 dollars. They have been
adjusted to 2005 dollars using the GDP deflator cited above. The actual costs per mile in
the Corps of Engineers Study were: $691,680 to $768,533 for construction, and $839 to
$6,715 for maintenance. Net Present Value after 25 years in 1997 dollars ranged from $9.73
million to $54.23 million. Corps of Engineer Study, pp. 3 and 23.
84 Jonathan Athens, “Officials say OK to Border Fence,” YumaSun.com (July 20, 2005)
available at [http://sun.yumasun.com/google/ysarchive14980.html].
85 DHS FY2007 Justifications, pg. CBP Construction-7. CBP project length does not
(continued...)
CRS-27
by FY2011, and that the overall project costs will be $116 million.86 This means that,
overall, the project will cost roughly $1.25 million per mile. The National Park
Service has spent $11.1 million to construct 18 miles of permanent vehicle barriers
in Organ Pipe Cactus National Monument, and has obligated, but not yet spent, an
additional $6.6 million in FY2005 funding to complete the remaining 13 miles of the
project.87
Temporary Vehicle Barriers. Temporary vehicle barriers are typically built
from welded metal, such as railroad track, but can also be constructed from telephone
poles or pipe. These barriers are built so that they cannot be rolled or moved
manually; they can only be moved with a forklift or a front-end loader. They are
usually built at USBP stations and transported to areas of high vehicle entry, where
they are placed and chained together.88 The main advantage of the temporary vehicle
barriers is their ability to be redeployed to different areas to address changes in
smuggling patterns. The main disadvantage of these barriers is that they are easier
to compromise than permanent vehicle barriers.
Current Status
In FY2007, DHS unveiled a new program, called SBInet,89 that will deploy a
mix of personnel, technology, infrastructure, and response assets in order to “provide
maximum tactical advantage in each unique border environment.” While SBInet has
been billed as a nationwide initiative, its initial rollout has been confined to the
southwest border. As part of SBInet, DHS awarded a contract to Boeing to serve as
the project’s lead technology integrator.
The SBInet program has included the construction of barriers as part of its
approach to securing the border. Boeing, in conjunction with the Sandia National
Laboratory, created a Fence Lab program to test the efficacy of 8 different fence
designs.90 In FY2007, CBP constructed a total of 76 miles of border fencing
bringing the overall fencing at the border to 154 miles. In FY2008 through the end
of the calendar year, CBP is planning to construct an additional 216 miles of fencing;
85 (...continued)
include the 30 miles of vehicle barriers maintained by the National Park Service.
86 DHS FY2007 Justifications, pg. CBP Construction-18. It is unclear why the project is
predicted to take less time with contractors, and yet the overall completion date for the
construction is predicted to be 2011.
87 From the National Park Service, February 9, 2006. The National Park Service notes that
30 miles of permanent vehicle barriers are being built at the Organ Pipe Cactus National
Monument, and one mile is being built in the Coronado National Monument.
88 U.S. Department of Justice, Immigration and Naturalization Service, Final Environmental
Assessment U.S. Border Patrol Temporary Vehicle Barriers Naco and Douglas, Arizona,
November 2002.
89 SBInet forms part of the Secure Border Initiative, which DHS has billed as a multifaceted
approach to securing the border. DHS FY2007 Justifications, pg. CBP S&E-4.
90 Department of Homeland Security, Customs and Border Protection, “Fence Lab To Test
Effective Low Cost Solutions,” Secure Border Initiative Monthly, April 2007.
CRS-28
this would bring the overall fencing at the border to 370 miles by the end of calendar
year 2008.91 Through early April, 2008, CBP had constructed an additional 18 miles
of fencing, bringing the total milage of fencing constructed at the border to 172.92
The fencing that has been constructed thus far as part of SBInet has been primary
fencing, and a few different designs have been used, including bollard fencing.
While the National Guard was involved in some of the construction in FY2007,
much of it was undertaken by contractors. In 2008, the majority of the fence
construction will be done by contractors.93
In FY2007, CBP constructed 110 miles of vehicle barriers. Through early April
in 2008, CBP had constructed an additional 32 miles of vehicle barriers, bringing the
total vehicle barrier milage to 142. CBP plans to build 158 additional miles of
vehicle barriers by the end of calendar year 2008; this would bring the overall total
milage of vehicle barriers at the border to 300.94
In testimony before the Appropriations Committee, the Government
Accountability Office (GAO) noted that CBP’s goal for fencing and vehicle barrier
deployment in 2008 “will be challenging because of factors that include difficulties
acquiring rights to border land and an inability to estimate costs for installation.”95
Legislation in the 110th Congress
The issue of border security continues to be of interest to the 110th Congress.
The following sections describe a representative selection of the legislation enacted
or considered by Congress concerning barriers at the border.
Enacted Legislation
As previously noted, the Consolidated Appropriations Act of 2008 (P.L. 110-
161) made significant changes to the Secure Fence Act. The Act gives DHS
discretion as to where fencing should be erected along the border, requires that 700
miles of reinforced fencing be constructed, and designates 370 miles as a priority area
that must be constructed by December 31, 2008. In addition, the Act provides a total
of $1,225 million for SBInet. This represents an increase of $225 million over the
Administration’s request, and the amounts recommended by the House and Senate-
91 Presentation given by Rowdy Adams, SBI Deputy Executive Director, Department of
Homeland Security, at the Border Management Summit, October 23, 2007.
92 From CBP Congressional Affairs, March 13, 2008,
93 Ibid.
94 Presentation given by Rowdy Adams, SBI Deputy Executive Director, Department of
Homeland Security, at the Border Management Summit, October 23, 2007.
95 Testimony of GAO Director of Homeland Security and Justice Issues Richard Stana, in
U.S. Congress, Committee on Appropriations, Subcommittee on Homeland Security, DHS
Has Taken Actions to Strengthen Border Security Programs and Operations, But Challenges
Remain, 110th Cong., 2nd Sess., March 6, 2009. Hereafter referred to as GAO Border Security
Testimony.
CRS-29
passed versions of the bill. Of the $1,225 million provided by P.L. 110-161, $1,053
million is designated as emergency funding, and $172 million is comprised of regular
appropriations.96 The $1,225 million is apportioned as follows: $1,088 million for
development and deployment ($1,053 million in emergency funding, and $35 million
in regular appropriations); $73 million for operation and maintenance; and $64
million for program management. Funding for the construction of the border fence
is included in the development and deployment activity in the BSFIT account.
However, it is important to note that other items, such as the deployment of cameras
and sensors to the border, are also funded under this activity. Currently available
authoritative documentation does not provide funding details below the activity level.
Therefore, the portion of this funding that would be specifically directed to the border
fence cannot be precisely determined. However, according to CBP Congressional
Affairs, the President’s $1,000 million FY2008 request for BSFIT included $196
million in fence-related funding.97 P.L.110-161 also withholds $650 million of the
funding provided for SBInet until an expenditure plan is received and approved by
the House and Senate Appropriations Committees.
Proposed Legislation
In addition to the Consolidated Appropriations Act, a number of bills have been
introduced in the 110th Congress that included provisions relating to the construction
of border fencing. Although the following analysis is not intended to provide a
comprehensive list of every bill introduced that had fencing provisions, it does
provide an overview of the main types of fence-related bills that have been
introduced and their overarching themes.
Prior to enactment of the Consolidated Appropriations Act, a number of other
bills were introduced in the 110th Congress that would expand or underlined the
Secretary of Homeland Security’s authority to construct fencing at the border. H.R.
4192, H.R. 3638, and H.R. 2954 would direct the President to construct the fencing
authorized by the Secure Fence Act. S. 2348 would authorize $3 billion in
emergency funding for a variety of border security purposes, including the
construction of 700 miles of fencing. S. 2294 and S. 1984 would call for the
construction of 700 miles of fencing and 300 miles of vehicle barriers within two
years of enactment. S. 1269 would call for the construction of double layer fencing
along the border from the Pacific Ocean to the Gulf of Mexico. S. 330 would call for
replacing existing fencing in Tucson and Yuma sectors with double layer fencing and
constructing a total of 370 miles of fencing and 500 miles of vehicle barriers along
the border.
The issue of barriers at the border has also been of interest to the 110th Congress
as a component of the larger immigration debate. During May and June 2007, the
Senate considered a number of comprehensive immigration reform measures (S.
96 The FY2008 appropriation for DHS included some funding that was designated as
emergency spending in addition to the regularly appropriated funding. For more information
about this, please refer to CRS Report RL34004, Homeland Security Department: FY2008
Appropriations, Coordinated by Jennifer E. Lake and Blas Nuñez-Neto.
97 From e-mail correspondence with CBP, July 27, 2007.
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1348, S.Amdt. 1150 to S. 1348, S. 1639), though cloture was unable to be achieved
on any of these proposals. Both S.Amdt. 1150, as amended, and S. 1639, as
introduced, included language concerning fencing at the border that was similar to
that which was ultimately enacted as part of the Consolidated Appropriations Act for
FY2008.98
Some comprehensive immigration reform proposals considered also included
provisions requiring that the construction of border barriers serve as a trigger
mechanism for broader immigration reform to occur. S.Amdt. 1150, as introduced,
would require the construction of 370 miles of fencing and 200 miles of vehicle
barriers before some provisions relating to legalization, adjustment of status, and
temporary workers could take effect. In addition, S.Amdt. 1150 would amend §102
of IIRIRA to expressly authorize the construction of the San Diego fence. During the
initial Senate floor debate for S.Amdt. 1150, S.Amdt. 1172 was adopted by
unanimous consent and amended the trigger mechanisms to require 300 miles of
vehicle barriers. S. 1639, as introduced, included similar language to S.Amdt. 1150,
as amended, concerning barriers at the border. S. 1639 would require DHS to
construct 370 miles of fencing and 300 miles of vehicle barriers as part of the trigger
mechanisms required before some provisions relating to legalization, adjustment of
status, and temporary workers could take effect. S. 1369 would also expressly
authorize the completion of the San Diego fence.
A number of bills that have been introduced in the second session of the 110th
Congress would amend the changes to the Secure Fence Act that were enacted by the
Consolidated Appropriations Act of FY2008. H.R. 5568 would insert the word
“physical” before all previously enacted occurrences of the word “fencing” (e.g., in
the Secure Fence Act and §102 of IIRIRA). S. 2712 would require that the 700 miles
of reinforced fencing authorized by the Consolidated Appropriations Act be
completed by December 31, 2010. H.R. 5124 would require that the fencing
constructed under the Act’s authorization be double layer, at least 14 feet tall, and be
completed within six months of the bill’s enactment. In addition, the bill would
prohibit DHS from counting fencing in existence prior to January 1, 2008, toward the
700-mile total. H.R. 4987 would replace the 700-mile requirement enacted by the
Consolidated Appropriations Act and replace it with language, similar to that in the
original Secure Fence Act, requiring five specific stretches of fencing to be
constructed. H.R. 4960 would repeal the consultation requirement enacted by the
Consolidated Appropriations Act.
Lastly, several introduced bills include other fencing provisions not directly
related to the construction of fencing. H.R. 5728 would establish a Border
Improvement Trust Fund and allow taxpayers to designate $5 ($10 for joint filers)
from their annual income tax returns for this fund. The fund could be used to pay for
costs associated with constructing and maintaining fencing and barriers at the border.
S. 2709 would impose a minimum sentence of five years for any alien convicted of
damaging fencing or infrastructure (including cameras and sensors) at the border.
98 See S.Amdt. 1168 (adopted by unanimous consent and modifying S.Amdt. 1150 to S.
1348); S. 1639, § 103.
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Legislation in the 109th Congress
The 109th Congress enacted three pieces of legislation concerning border
fencing, and considered several more. The REAL ID Act (P.L. 109-13), as
previously noted, expanded DHS’ waiver authority to expedite the construction of
border fencing. The Secure Fence Act of 2006 (P.L. 109-367) directed DHS to
construct five stretches of border fencing totaling roughly 850 miles.99 The FY2007
DHS Appropriations Act (P.L. 109-295) provided $1.2 billion for the installation of
fencing, infrastructure, and technology along the border; $31 million of this total was
designated for the completion of the San Diego fence.100 In addition to these Acts,
a number of bills with fencing related provisions were passed by the House and the
Senate. H.R. 4437, which would have directed DHS to construct five stretches of
fencing along the border, was passed by the House on December 16, 2005. S. 2611,
which called for 370 miles of fencing to be constructed, was passed by the Senate on
May 25, 2006. S.Amdt. 4788 was added to the Department of Defense Appropriation
bill, H.R. 5631, on August 2, 2006, and would have appropriated $1.8 billion to the
National Guard for the construction of border fencing. H.R. 5631 was passed by the
Senate on September 7, 2006; however, this fencing provision was stripped from the
bill during conference.
P.L. 109-295, the FY2007 DHS Appropriations Act, provided $1.2 billion in
funding for border fencing, infrastructure, and technology; combined with the
supplemental appropriation provided by P.L. 109-234, the conferees noted that DHS
would have $1.5 billion for border infrastructure construction in FY2007.101 The
conferees directed DHS to submit an expenditure plan for this funding within 60 days
of the bill’s enactment, and withheld $950 million of the funding until the plan is
received and approved by the House and Senate Committees. However, the Act did
not place any restrictions on how DHS is to apportion this appropriation between
fencing, infrastructure, and technology.
In addition to the bills discussed above, there were a number of bills in the 109th
Congress that would have expanded the current fencing and other forms of barriers
at the international land border. Some of these bills would have required fencing to
be constructed along the entire southwest border, others would have identified
particular stretches of land which would receive fencing, and still others would have
called for studies to determine whether fencing is a cost-effective way of securing the
border.102
99 From CBP Congressional Affairs, September 25, 2006.
100 H.Rept. 109-699, p. 130.
101 For more information about DHS Appropriations, please refer to CRS Report RL33428,
Homeland Security Department: FY2007 Appropriations, Jennifer Lake and Blas Nuñez-
Neto, Coordinators.
102 Bills with border fencing language in the 109th Congress included H.R. 418, H.R. 1268,
H.R. 4083, H.R. 4312, H.R. 4313, H.R. 4437, H.R. 5067, H.R. 5456, H.R. 5631, H.R. 6061,
S. 1916, S. 2049, S. 2061, S. 2117, S. 2368, S. 2377, S. 2454, S.Amdt. 3192, S. 2611, S.
2612, S. 3564, and S.Amdt. 4788.
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Issues For Congress
Congress may consider a number of policy issues concerning the construction
of barriers along the border, including, but not limited to, their effectiveness, overall
costs compared with benefits, possible diplomatic ramifications, unintended
consequences, and the locations in which they are to be constructed. Although these
issues apply to all potential barriers at the border, due to the focus on border fencing
in the current congressional debate, this section will focus its analysis on the potential
policy issues surrounding the construction of fencing at the border.
Effectiveness
Proponents of border fences point to the substantial reduction in apprehensions
along the San Diego sector as tangible proof that fences succeed in reducing cross-
border smuggling and migration where they are constructed.103 Opponents attribute
part of the decrease in apprehensions to the increase in manpower and resources in
the sector and, pointing to the increase in apprehensions in less-populated sectors,
contend that the fence only succeeds in re-routing unauthorized migration and not in
stopping it.104 The USBP, for its part, states that border fencing is a force multiplier
because it allows its agents to focus enforcement actions in other areas. The USBP
has also stated that the fencing constructed in urban areas has helped reroute
unauthorized migration to less populated areas where its agents have a tactical
advantage over border crossers. As previously noted, the number of USBP
apprehensions in 2004 were almost identical to the number of apprehensions in 1992;
the main difference is that San Diego accounted for the majority of apprehensions in
1992, whereas in 2004 Tucson and Yuma sectors accounted for the majority of
apprehensions.
A possible issue for Congress concerns the overall effectiveness of border
fencing, especially if it is not constructed across the entire border in question. In the
limited urban areas where border fencing has been constructed, it has typically
reduced apprehensions. However, there is also strong indication that the fencing,
combined with added enforcement, has re-routed illegal immigrants to other less
fortified areas of the border. Additionally, in the limited areas where fencing has
been erected, there have been numerous breaches of the border fencing and a number
of tunnels discovered crossing underneath the fencing. It stands to reason that even
if border fencing is constructed over a significant portion of the land border, the
incidences of fence breaches and underground tunnels would increase. Possible
policy options to address these issues could include mandating that border fencing
be highly tamper-resistant or directing CBP to invest in tunnel-detection
technologies.
103 For the views of supporters of border fencing, refer to “We Need a Fence,” available at
[http://www.weneedafence.com/], and Thomas Sowell, “Let’s Get Our Terms Straight,”
available at [http://www.annistonstar.com/opinion/2006/as-insight-0402-0-6d01s3130.htm].
104 For the views of opponents of border fencing, refer to Eilene Zimmerman, “Against the
Wall,” Salon, December 12, 2005, at [http://dir.salon.com/story/news/feature/2005/12/12/
border_wall/index.html], and Molly Ivins, “Another Brick in the Wall,” available at
[http://www.annistonstar.com/opinion/2006/as-insight-0402-0-6d01s3130.htm].
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Costs
Because border fencing is a relatively new and limited phenomenon along the
U.S.-Mexico border, there is a dearth of information concerning its overall costs and
benefits. The Corps of Engineers study predicted that the costs of constructing a
double layer fence consisting of primary fencing and Sandia fencing would range
from $1.2 million to $1.3 million a mile, excluding the costs of land acquisition. The
Corps of Engineers also predicted that the 25-year life cycle cost of the fence would
range from $16.4 million to $70 million per mile depending on the amount of
damage sustained by the fencing.105 If significant portions of the border were to be
fenced, reducing the areas along which individuals could cross the border, it may
stand to reason that the fencing will be subjected to more breaches and other attempts
to compromise than the fencing that has already been constructed. This may mean
that the costs of maintaining border fencing that is widely deployed in the future will
be higher than they have been thus far for the limited deployment. The Corps
estimates do not include the costs of acquiring the land or most labor costs, since
construction would be done by DOD; these could well turn out to be significant
expenses if private contractors are used to construct the fencing as per DHS’ FY2007
Congressional Budget Justifications. The Congressional Budget Office (CBO) has
estimated that border fencing would cost $3 million a mile to construct and that
maintenance would total roughly 15% of the overall project costs per year.106
However, the CBO does not elaborate on what is included in those estimates. DHS
predicts that the San Diego fence will have a total cost of $127 million for its 14-mile
length when it is completed — roughly $9 million a mile. Construction of the first
9.5 miles of fencing cost $31 million, or roughly $3 million a mile, while
construction of the last 4.5 miles of fencing is projected to cost $96 million, or
roughly $21 million a mile.107 However these costs may be somewhat misleading
due to the following factors: construction of the fence was delayed for an extended
period of time; the remaining construction involves filling a relatively large gulch
which may be more complex than the average stretch of border; and DHS is
105 As previously noted on pages 19-21, these numbers reflect Corps figures for the
construction and 25-year life cycle costs associated with erecting primary landing mat and
secondary Sandia fencing along the border. The Corps study used 1997 dollars, which have
been adjusted by CRS using a GDP deflator to 2005 dollars. The actual predictions made
by the Corps for constructing and maintaining primary fencing, in 1997 dollars, were
$341,584 to $379,538 per mile for construction costs, and $1,534 to $15,629 per mile per
year in maintenance costs. The 25-year life-cycle costs for constructing and maintaining
landing mat fencing were predicted to range between $4.73 and $7.34 million per mile in
1997 dollars. The actual predictions made by the Corps for constructing and maintaining
Sandia fencing, in 1997 dollars, were: $691,680 to $768,533 per mile for construction, and
$839 to $6,715 per mile for maintenance. The 25-year life cycle costs for constructing and
maintaining Sandia fencing were predicted to range between $9.73 million to $54.23 million
per mile in 1997 dollars. Corps of Engineer Study, p. 3 and pp. 21-23.
106 Congressional Budget Office, Congressional Budget Office Cost Estimate: S. 2611
Comprehensive Immigration Reform Act of 2006, as passed by the Senate on May 25, 2006,
August 18, 2006, p. 14, at [http://www.cbo.gov/ftpdocs/75xx/doc7501/s2611spass.pdf].
107 From the DHS FY2006 and FY2007 Congressional Budget Justifications.
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proposing to use private contractors to expedite the construction process which may
increase the labor costs and thus may increase the overall project costs.
Some have argued that building fences on the border is too expensive and would
consume funding that would be better spent on hiring additional agents or deploying
additional technologies to the border.108 Others maintain that the costs of fencing are
negligible compared to the costs of illegal immigration, and that fencing has been
proven effective at decreasing illegal immigration in those areas where it has been
deployed.109 The USBP has testified that “for border control, for border security, we
need that appropriate mix. It’s not about fences. It’s not about Border Patrol agents.
It’s not about technology. It’s about all of those things.”110 At issue for Congress is
how best to allocate scarce border security resources while safeguarding homeland
security. Does border fencing represent the best investment of border security
funding, and what is the appropriate mix of border security resources? How much
will maintaining border fencing cost in the future, and which agency will be
responsible for this maintenance? Will using private contractors to expedite the
construction of border fencing increase or decrease the costs?
Fence Design
Congress mandated the design of the border fence in San Diego in IIRIRA.
Many different fence designs could be deployed to the border, and each have their
relative strengths and weaknesses. Concrete panels, for example, are among the
more cost-effective solutions but USBP agents cannot see through this type of
fencing; the USBP testified about their preference for fencing that can be seen
through, so as to identify the activity occurring on the Mexican side of the border and
thus preserve their tactical advantage over potential border crossers, and to better
avoid potential rockings111 or other violent incidents. Sandia fencing has been
effective in San Diego and can be seen through, but is among the more expensive
fencing options. Bollard fencing has been effective in its limited deployment and can
also be seen through, but is also expensive to install and to maintain. Chain link
108 See Jason Ackleson, “Fencing in Failure; Effective Border Control is Not Achieved by
Building More Fences,” Immigration Policy in Focus, Vol. 4, Issue 2, April 2005, available
at [http://www.ailf.org/ipc/policy_reports_2005_fencinginfailure.asp].
109 For a series of examples, see Parapundit, Immigration Border Control Archives, available
at [http://www.parapundit.com/archives/cat_immigration_border_control.html].
110 Testimony of Kevin Stevens, Senior Associate Chief of Customs and Border Protection,
in U.S. Congress, House Homeland Security Committee, Economic Security, Infrastructure
Protection and Cyber Security Subcommittee, and House Government Reform Committee,
Criminal Justice, Drug Policy, and Human Resources Subcommittee, Fencing the Border:
Construction Options and Strategic Placement, 109th Cong., 2nd sess, July 20, 2006.
Hereafter referred to as: Fencing the Border hearing, July 20, 2006.
111 Rockings refer to the phenomenon of individuals on the Mexican side of the border
hurling stones and other items over the fence at USBP agents and vehicles. In the Yuma
sector, for example, agents patrolling along the fence are deployed in armored vehicles
known as “war-wagons” to protect themselves from rockings and other forms of assault,
which are common in that area. Information obtained during a CRS site visit to Yuma sector
in August 2005.
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fencing is relatively economical, but more easily compromised.112 If fencing is to be
constructed along the border, an issue concerns what kinds of fencing should be
constructed in order to maximize its deterrent effect and its utility to the USBP while
minimizing the costs associated with its construction and maintenance.
Fence Location
The USBP has testified that border fencing is most effective for its operational
purposes when deployed along urban areas.113 In these areas, individuals crossing the
border have a short distance to cover before disappearing into neighborhoods; once
they have entered neighborhoods it is much more difficult for USBP agents to
identify and apprehend unauthorized aliens. Also, from populated areas it is
relatively easy for unauthorized aliens to find transportation into the interior. For
these reasons, all of the border fencing constructed by the USBP to date has been
built in urban areas abutting the border, such as San Diego, Nogales, and El Paso.
In rural areas, the USBP testified that it has a tactical advantage over border crossers
because they must travel longer distances before reaching populated areas.
According to CBP, fencing is manpower intensive because agents must continually
check the fence for breaches and for illegal activity. This does not represent a
problem in urban areas, because the USBP stations are typically located near the
border in those areas. In some of the more rural areas of the border, where the nearest
towns and USBP stations may be many miles away from the border, this would mean
that agents would need to spend much of their working day commuting from the
nearest USBP station to the fence location.114 Additionally, because the border
fencing constructed to date has been built along urban areas it has been relatively
easy to house the individuals involved in its construction. If border fencing is
extended into the more remote areas of the border, the costs of its construction may
increase due to the need to bring the individuals and goods needed to build the fence
to these areas for extended periods of time. Lastly, some areas of the border are
prone to severe weather effects, such as flash flooding, that could compromise any
permanent structures constructed there.
A very practical issue concerns what areas of the border should be fenced.
Should fencing be restricted to urban or semi-urban areas in order to give the USBP
a tactical advantage over border crossers, or should fencing be constructed along any
geographical area of the border that features large numbers of unauthorized
immigration? In rural areas, should fencing be limited to areas of high illegal entry
in order to impede individuals from crossing the border, or should fencing be
constructed as a deterrent in any area, even those featuring low levels of illegal entry?
Should fencing be deployed in sectors where the distance between the nearest USBP
station and the fence requires agents to spend most of their day commuting? Should
fencing be deployed to the northern border as well as the southwest border? Will
building fencing along more remote or environmentally harsher areas of the border
increase the construction costs?
112 Fencing the Border hearing, July 20, 2006.
113 Fencing the Border hearing, July 20, 2006.
114 Interview with CBP Congressional Affairs, September 13, 2006.
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Land Acquisition
There are a number of issues associated with the acquisition of the land that
would be required for border fencing. Much of the land along the California and
Arizona border is owned by the federal government; however most of the land along
the Texas border is owned by private individuals. What will the costs of acquiring
the land to construct border fencing be, and have these costs been factored into
estimates of border fencing costs? Will eminent domain be used to confiscate land
from individuals who do not wish to have fencing built on their lands?
The reservations made by Presidents Roosevelt and Taft may have kept
substantial parcels of land within the federal domain, depending mostly on the
amount of public lands at the time and valid existing claims. CRS was not able to
determine how many valid claims and land patents exist, if any, or the number of
private developments that may be encroaching on the reservations. Nonetheless, it
appears that only those who qualify under an exception or were provided land by
statute have valid fee title claims within the reserved strip. If lands were mistakenly
granted, sold, or transferred to private parties, these conveyances could be void
because, as a general rule, rights can not be acquired in lands actually embraced in
a legally valid withdrawal.115 Compensation under the Fifth Amendment for private
landowners may not be owed if private claims are not legitimate. Because the
proclamations do not cite any supporting authority, some question the President’s
implied or inherent constitutional powers to issue them.116 Others may argue that
they conflict with the exclusive mandate given Congress by the Property Clause of
the Constitution to regulate and dispose of federal property.117 An issue for Congress
may include whether these proclamations are, in fact, valid, and if so what actions are
appropriate to take in the instances where individuals own land within the
reservation’s boundaries. Assuming the proclamations are valid, the reservations
may provide the first 60 feet of necessary space for fence construction in many areas.
However, the two layer fencing constructed to date includes 150 feet of land between
its layers. An issue for Congress may involve whether to confine border fencing to
115 Charles F. Wheatley, Study of Withdrawals and Reservations of Public Domain Lands,
at Vol. III, at A-7 (1969); see also Steel v. Smelting Co., 106 U.S. 447, 453 (1882)
(observing that the patent, like the deed of an individual, is inoperative if the government
never owned the property, or had previously conveyed it, or had reserved it from sale);
United States v. Fennell, 381 F. Supp. 2d 1300 (D. N.M. 2005). Cf. United States v.
California, 332 U.S. 19, 39 (1947) (finding the federal government’s paramount rights in the
three-mile belt along the California coast were not lost by reason of the conduct of its agents
or the acquiescence of such agents in California’s claim of title).
116 See United States v. Midwest Oil, 236 U.S. 459, 471 (1915) (upholding the President’s
authority to make land withdrawals on the basis of implied acquiescence in such
withdrawals by Congress), repealed by 43 U.S.C. §1714. The President’s constitutional
inherent withdrawal power derived from three theories — residual Executive power,
stewardship, and constitutional necessity. See Wheatley, Study of Withdrawals, at Vol I, at
134. In Midwest Oil, the Court noted that by 1910, the President had implemented at least
252 executive orders making reservations for useful, though non-statutory purposes. Id. at
471.
117 U.S. CONST. Art. IV, §3, cl.2.
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the 60-feet easement reserved by the proclamations, or whether to acquire the
additional 90 feet of land that would be needed to construct Sandia-style fencing.
A corollary issue may involve the authority of DHS to construct border fencing
along tribal lands. The Arizona desert along the Tohono O’odham reservation has
become one of the most heavily trafficked border areas in the country, and the USBP
has been restricted in its operations in the reservation due to tribal concerns.118 The
Tohono O’odham have reportedly vowed to fight the construction of fencing on
tribe-owned land, citing environmental and cultural concerns.119 Under current law,
the Secretary of the Interior may grant rights-of-way over and across tribal land,
provided the Secretary receives prior written consent of the tribe.120 If the tribe does
not consent, DHS may look to its new waiver authority to construct a fence across
tribal lands. It is unclear, however, whether the expanded waiver that was given to
the Secretary of DHS would allow (or was intended to allow) the Department to
override the statutory authority given to another federal agency. Ultimately, federal
government holds all Indian lands in trust, and Congress may take such lands for
public purposes, as long as it provides just compensation as required by the Fifth
Amendment.121
Diplomatic Ramifications
The governments of Mexico and Canada have both voiced concern about the
United States constructing barriers along the international border. Mexican President
Vicente Fox has come out strongly against the construction of border barriers on
numerous occasions, stating his belief that these projects isolate the two nations,
create frustration and misunderstandings, and do not solve the underlying problems
that lead individuals to enter the United States illegally. Mexican Press Secretary
Rubén Aguilar Valenzuela stated his government’s belief that “history has also taught
us that a wall is never the solution to problems and that all walls eventually get torn
down.”122 The Mexican government has reportedly forwarded numerous diplomatic
notes to the White House registering its complaints against the possible expansion
of border fencing. The Canadian government has also reportedly voiced concern
over legislative proposals that would require a study of fencing options along the
northern border, citing the difficulties of fencing the northen border and the fact that
118 The USBP has been prohibited from building permanent camera installations and from
paving access roads leading to and along the border. Information obtained during a CRS
site-visit to the Tohono O’odham reservation, August 2005.
119 Randal Archibald, “Border Fence Must Skirt Objections From Arizona Tribe,” New York
Times, September 20, 2006.
120 25 U.S.C. §324.
121 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).
122 Mexican Government Press Release, “Crecimiento con Calidad: El Presidente Vicente
Fox encabezará la cena de gala de la XI Cumbre Anual Hemispheria San Pedro 2005: Rubén
Aguilar, Vocero de Presidencia,” May 12, 2005. Translation by CRS.
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the U.S. government has never discussed such a plan with Canadian authorities.123
Deputy Assistant Secretary for Immigration and Customs Enforcement John P. Clark
reportedly stated during Congressional testimony that the proposed expansion of
border fencing “harkens back to the Chinese wall and the Berlin Wall, not the
message we want to send to the Mexican government, the Canadian government, and
the rest of the world.”124 There are a number of possible issues for Congress to
consider involving the potential diplomatic ramifications of constructing barriers
along the border: Do the gains in border security outweigh the risk of alienating
Mexico and Canada? Should the Mexican or Canadian government’s opinions or
wishes be taken into account when border fencing is concerned? Given the need to
coordinate intelligence and law enforcement activities at the border, should
maintaining cordial working relationships with Mexico and Canada take precedence
over sealing the border with physical barriers?
Environmental Considerations
A great deal of debate has been around the environmental impacts of border
fencing. The addition of fences along the southwest border, according to some, could
harm sensitive environments, adversely affect critical habitat for protected species,
and block migratory patterns for animals. Indeed, these concerns were among the
many voiced by the CCC in its objection to the completion of the San Diego border
fence. After immigration officials, the CCC, and the environmental community could
not agree on a fence design, Congress passed waiver language in the REAL ID Act
that allows the Secretary of DHS to waive all “legal requirements” necessary to
ensure expeditious construction of the barriers and roads in the vicinity of the U.S.
border. The Secretary used this provision to waive a number of primarily
environmental laws (see Appendix A) in order to complete the San Diego border
fence. DHS maintains, however, that it will follow “best management practices”
throughout construction and will be “mindful of the environmental impacts” that
might occur.125 Nonetheless, the Secretary’s broad waiver authority has many
worried about potential fence projects along other areas of the southwest border.
Some argue that a fence along the Arizona border could be especially destructive to
endangered jaguar and Sonoran desert pronghorn populations that usually roam this
area because it would fragment native habitat and ultimately reduce gene pools.126
Officials from the U.S. Fish and Wildlife Service, however, have said that it is too
early to speculate about the potential impact of a border fence on wildlife
123 Beth Gorham, “Canada Balks at U.S. Plan for Border Fence,” Canadian Press, December
17, 2005, at [http://www.canada.com/nationalpost/story.html?id=6c13f3fd-bdfb-4346-99ef
-3f01f870c801&k=60592&p=1].
124 Eunice Moscoso, “Border Fence Would Cost Millions, Not Work Critics Say,” Cox News
Service, November 9, 2005.
125 Eilene Zimmerman, SFGate.com, Border protections imperil environment — Last
wilderness area south of San Diego could be damaged, February 27, 2006, available at
[http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/02/27/MNG2GHFBFL1.DTL
&type=printable].
126 Id; Defenders of Wildlife, On the Line, pp. 16-19.
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migration.127 Others note that unauthorized migration negatively impacts the
environment, and believe that the construction of fencing could actually have a
beneficial impact for protected lands if it reduces the number of unauthorized
migrants traversing through environmentally sensitive lands.
As Congress debates immigration reform and the addition of new border fences,
Members will undoubtedly be called upon to balance national security interests with
environmental protections. Because there does not appear to be a clear consensus on
the environmental impacts of border fencing, there is some interest in a study of the
issue.128 The effects of the San Diego border fence, for example, may help scientists
better understand and predict potential environmental consequences elsewhere.
Should fencing be expanded along the southwest border, Congress may be interested
in environmentally sensitive alternatives to normal fencing and whether they can
effectively limit illegitimate cross-border traffic. Some argue that vehicle barriers
may be less intrusive because they allow unimpeded wildlife movement but can limit
damaging vehicular traffic.129 Congress may also call on the Secretary to cooperate
or coordinate certain activities with the environmental community, since the
Secretary could waive many environmental requirements.130
Legal Considerations
The building of barriers along the international border has raised a number of
legal issues. Most stem from requirements posed by environmental laws. Before the
passage of the REAL ID Act waiver provision, for example, the Sierra Club and other
environmental groups challenged, under the National Environmental Policy Act, the
federal government’s plan to complete the San Diego border fence.131 The lawsuit
alleged, among other things, that the government’s final environmental impact
statement did not address the entire 14-mile border infrastructure system and
inadequately addressed the parts that were evaluated. After Secretary Chertoff
exercised the waiver authority, the court dismissed the environmentalists’ lawsuit in
December 2005.
127 Chuck Mueller, Dailybulletin.com, Experts say border fence would hurt bighorn sheep
(August 14, 2006) available at [http://www.dailybulletin.com/news/ci_4177153]. Reports
also indicate that a constant flow of illegal aliens into the native habitat for these animals
interferes with their use of certain lands and survival. See Defenders of Wildlife, On the
Line, p. 18.
128 Indeed, §129 of S. 2611, passed by the Senate in the 109th Congress, called on the
Secretaries of the Interior, Agriculture, Defense, and Commerce, and the Administrator of
the EPA to assess the environmental impacts, including the impact on zoning, global climate
change, ozone depletion, biodiversity loss, and transboundary pollution, of physical barriers
along the southern international land and maritime borders.
129 Defenders of Wildlife, On the Line, p. 35; Anne Minard, National Geographic News, U.S.
Immigration Law Could Harm Desert Animals, Critics Say, (March 31, 2006) available at
[http://news.nationalgeographic.com/news/2006/03/0331_ 060331_desert_fence.html].
130 See generally, Defenders of Wildlife, On the Line.
131 Sierra Club v. Ashcroft, No. 04-CV-272, (S.D. Cal. February 10, 2004).
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With respect to the Secretary’s use of the waiver authority, the provision allows
legal redress only for constitutional violations and limits review to the district courts
of the United States (though the Supreme Court retains discretionary appellate review
over district court decisions). In essence, an individual could not sue DHS for
bypassing the environmental impact statement requirements of the National
Environmental Policy Act (a law it has waived) because that would be a statutory
violation, but an individual could sue for the taking of property without “just
compensation” as provided by the Fifth Amendment. Should a district court make a
ruling, that decision can only be appealed if the petitioner files a petition for a writ
of certiorari to the Supreme Court and the Court, in its discretion, chooses to grant
certiorari. In other words, there is no intermediate appellate court review guaranteed
as of right to a petitioner. Appeal directly from a district court to the Supreme Court
rarely appears in law.132 Still, when Congress determines a particular class of cases
to be of great public import, it is not unprecedented for it to require prompt review
in the highest court of the land. As previously discussed, the Sierra Club and
Defenders of Wildlife brought suit in the U.S. District Court for the District of
Columbia in late 2007, challenging the constitutionality of the waiver authority
provided to the Secretary of Homeland Security by the REAL ID Act, but the court
rejected plaintiffs’ constitutional challenge and dismissed the claim.133 Consequently,
the plaintiffs have filed a petition for a writ of certiorari to the U.S. Supreme Court,
which is still pending.
Unintended Consequences
Considerable evidence shows that the USBP’s historical strategy of “Prevention
through Deterrence,” whereby agents and resources including border fencing and
other barriers have been concentrated along urban areas and areas traditionally
featuring high levels of illegal entry, has succeeded in changing the flow of illegal
migration. While San Diego, CA, and El Paso, TX, were historically the two sectors
that featured the most apprehensions and the highest levels of illegal immigration,
since the mid-1990s and the advent of Operations Gatekeeper and Hold the Line in
those sectors, the more remote geographical areas of the Arizona border have become
the hot-spots for illegal migration into the United States. One unintended
consequence of this enforcement posture and the shift in migration patterns has been
an increase in the number of migrant deaths each year; on average 200 migrants died
each year in the early 1990s, compared with 472 migrant deaths in 2005. Another
unintended consequence of this enforcement posture may have been a relative
increase, compared with the national average, in crime along the border in these more
remote regions. While crime rates in San Diego and El Paso have declined over the
past 15 years, the reduction in crime rates along the more rural areas of the border
have lagged behind the national trends. Another unintended consequence of the
border fencing has been the proliferation of tunnels dug underneath the border. In
San Diego, where the double-layer Sandia fencing has been constructed, smugglers
132 Laws that allow a district court ruling to be appealed directly to the Supreme Court
include 13 U.S.C. §141 (illegal use of census data); 15 U.S.C. §29 (Sherman Act violations);
18 U.S.C. §700 (flag desecration violations); 42 U.S.C. §1971 (voting rights violations); and
42 U.S.C. §2000a-5 (civil rights violations).
133 See supra at 10.
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have dug numerous tunnels underneath the border fence. One such tunnel was almost
a kilometer long and was built from reinforced concrete — evidence of a rather
sophisticated smuggling operation.
A possible issue for Congress to consider as it debates expanding the existing
border fencing is what the unintended consequences of this expansion could be.
Given the re-routing of migration flows that have already occurred, are DHS and the
relevant border communities prepared to handle the increased flow of illegal
migration to non-reinforced areas? Is DHS prepared to deal with an increase in the
phenomenon of cross-border tunnels and other attempts to defeat the purpose of the
fencing? What will the impact on crime rates be along the unreinforced areas of the
border? Will USBP agents be required to spend some of their patrolling time
guarding the fence?
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Appendix A. Examples of USBP Border Fencing
Source: U.S. Department of Justice, Immigration and Naturalization Service, Environmental
Assessment for Infrastructure Within U.S. Border Patrol Naco-Douglas Corridor Cochise County,
Arizona, August, 2000, p. 1-13.
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Appendix B. The San Diego Fence
Source: U.S. Department of Homeland Security; Environmental Impact Statement for the
Completion of the 14-Mile Border Infrastructure System San Diego, California, July 2003.
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Appendix C. Permanent Vehicle Barrier Schematic
Source: U.S. Department of the Interior, National Park Service, Proposed Vehicle Barrier
Environmental Assessment, April, 2003.
CRS-45
Appendix D. Permanent Vehicle Barriers
Source: CBP Congressional Affairs.
CRS-46
Appendix E. Data from Figure 4
FY1992
FY1993
FY1994
FY1995
FY1996
FY1997
FY1998
FY1999
FY2000
FY2001
FY2002
FY2003
FY2004
Other San Diego
204,456
210,129
155,386
262,505
297,423
189,321
160,781
140,640
113,866
85,815
87,195
96,752
119,293
Sector Stations
Chula Vista
158,952
156,273
107,872
141,096
111,413
67,804
72,648
27,085
19,453
9,627
3,080
4,545
9,923
Station
Imperial Beach
202,173
165,287
186,894
120,630
74,979
27,865
15,832
15,974
19,815
15,480
11,405
10,218
9,112
Station
Tucson
71,036
92,639
139,473
227,529
305,348
272,397
387,406
470,449
616,346
449,675
333,648
347,263
490,827
Source: CRS Presentation of CBP data.
CRS-47
Appendix F. Legal Requirements Waived by DHS for the Construction of
the San Diego Border Fence
Laws Waived
General Requirements
National Environmental Policy Act (NEPA)
Under NEPA, an environmental impact statement must be prepared for “every recommendation or report
16 U.S.C. §§ 4321 et seq.
on proposals for legislation and other major federal actions significantly affecting the quality of the human
environment.” If an agency is uncertain whether an action’s impacts on the environment will be significant,
it usually prepares an environmental assessment (EA). An EA is carried out to clarify issues and determine
the extent of an action’s environmental effects. NEPA also has public notice and comment requirements.
Endangered Species Act (ESA)
Section 7 of the ESA mandates that each federal agency consult with the Fish and Wildlife Service (FWS)
16 U.S.C. §§ 1531 et seq.
or National Marine Fishery Services (NMFS), depending on the listed species involved, to ensure that its
actions are “not likely to jeopardize the continued existence of any endangered species or threatened species,
or result in the destruction or adverse modification of” designated critical habitat. Once consulted, FWS or
NMFS must, if listed endangered species might be affected, prepare a biological opinion to determine the
actual impact of the proposed action. Mitigation measures could be required.
Costal Zone Management Act (CZMA)
The CZMA requires federal agency activity within or outside the coastal zone that affects any land or water
16 U.S.C. §§ 1451 et seq.
use or natural resource of the coastal zone to be carried out in a manner that is consistent to the maximum
extent practicable with the policies of an approved state management program. The federal agency must
submit a consistency determination to the applicable state agency.
Federal Water Pollution Control Act
Section 404 of the Clean Water Act establishes a program to regulate the discharge of dredged or fill material
(Clean Water Act)
into waters of the United States, including wetlands. Section 404 requires a permit before dredged or fill
33 U.S.C. §§ 1251 et seq.
material may be discharged into waters of the United States, unless the activity is exempt.
National Historic Preservation Act (NHPA)
In accordance with the NHPA and its implementing regulations, 36 CFR Part 800, sites determined to be
16 U.S.C. §§ 470 et seq.
eligible for inclusion in the National Register of Historic Places must be protected, either through avoidance
or other mitigative action, from direct and indirect impacts. The NHPA also has procedural requirements,
including public notice and comment.
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Laws Waived
General Requirements
Migratory Bird Treaty Act (MTBA)
Section 2 of the MTBA sets out the types of prohibited conduct and states: “Unless and except as permitted
16 U.S.C. §§ 703 et seq.
by regulations ... it shall be unlawful at any time, by any means, or in any manner, to pursue, hunt, take,
capture, kill, attempt to do these acts, [or] possess ... any migratory bird, [or] any part, nest, or eggs of any
such bird....” Violations of the MTBA may result in civil or criminal penalties.
Clean Air Act (CAA)
The Clean Air Act requires the Environmental Protection Agency to establish minimum national standards
42 U.S.C. §§ 7401 et seq.
for air quality, known as National Ambient Air Quality Standards (NAAQS), and assigns primary
responsibility to the states to assure compliance with the standards. Areas not meeting the standards, referred
to as “nonattainment areas,” are required to implement specified air pollution control measures. Federal
actions located in NAAQS nonattainment areas must comply with the federal general air conformity rule set
forth by the CAA and codified in 40 CFR Part 51. The general conformity rule requires federal agencies to
ensure that actions undertaken in nonattainment or maintenance areas are consistent with the applicable state
plan. The states administer the CAA through a comprehensive permitting program.
Administrative Procedure Act (APA)
The APA establishes the general procedures that an agency must follow when promulgating a legislative
5 U.S.C. §§ 551 et seq.
rule. An agency must publish a notice of proposed rulemaking in the Federal Register, afford interested
persons an opportunity to participate in the proceeding through the submission of written comments or, at
the discretion of the agency, by oral presentation, and when consideration of the matter is completed,
incorporate in the rules adopted “a concise general statement of their basis and purpose.” A final rule must
be published in the Federal Register “not less than 30 days before its effective date.”
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Appendix G. Legal Requirements Waived by DHS for the Construction of Physical Barriers
and Roads in the Vicinity of the Barry M. Goldwater Range in Southwest Arizona
Laws Waived
General Requirements
National Environmental Policy Act (NEPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 4321 et seq.
Endangered Species Act (ESA)
See Appendix F for description of requirements.
16 U.S.C. §§ 1531 et seq.
Federal Water Pollution Control Act
See Appendix F for description of requirements.
(Clean Water Act)
33 U.S.C. §§ 1251 et seq.
Wilderness Act , 16 U.S.C. §§ 1131 et seq.
The Wilderness Act established a National Wilderness Preservation System on federal lands “where the earth
and its community of life are untrammeled by man, where man himself is a visitor who does not remain.”
Within designated wilderness areas, section 4(c) of the Act generally prohibits structures or installations,
motor vehicle or other forms of mechanical transport, and temporary roads.
National Historic Preservation Act (NHPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 470 et seq.
National Wildlife Refuge System Administration
The National Wildlife Refuge System (NWRS) was primarily established to ensure the conservation of fish,
Act, 16 U.S.C. §§ 668dd-668ee.
wildlife, and plants. Designated areas may be used for other purposes (e.g., hunting, timber harvest, and
grazing) only to the extent that such activities are compatible with the purposes for which the refuge was
created. The refuges are managed by the Fish and Wildlife Service.
Military Lands Withdrawal Act of 1999 (P.L.
The Military Lands Withdrawal Act of 1999 withdrew the lands within the Barry M. Goldwater Range and
106-65, 113 Stat. 885 (Oct. 5, 1999).
generally reserved such lands to the Secretaries of the Air Force and the Navy for military purposes. The
Secretaries of the Air Force, Navy, and Interior were required to establish an integrated natural resource plan
(INRP) which, among other things, provided that “all gates, fences, and barriers constructed on such
lands...be designed and erected to allow wildlife access, to the extent practicable and consistent with military
security, safety, and sound wildlife management use.”
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Laws Waived
General Requirements
Sikes Act, 16 U.S.C. §§ 670 et seq.
The Sikes Act requires the Secretary of Defense to carry out a program providing for the conservation and
rehabilitation of natural resources on military installations (e.g., public lands withdrawn or reserved for use
by a military department), pursuant to an INRP prepared in cooperation with the Secretary of the Interior.
Administrative Procedure Act (APA)
See Appendix F for description of requirements.
5 U.S.C. §§ 551 et seq.
CRS-51
Appendix H. Legal Requirements Waived by DHS for the Construction of Physical Barriers
and Roads in the Vicinity of the San Pedro Riparian National Conservation Area
in Southeast Arizona
Laws Waived
General Requirements
National Environmental Policy Act (NEPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 4321 et seq.
Endangered Species Act (ESA)
See Appendix F for description of requirements.
16 U.S.C. §§ 1531 et seq.
Federal Water Pollution Control Act
See Appendix F for description of requirements.
(Clean Water Act)
33 U.S.C. §§ 1251 et seq.
National Historic Preservation Act (NHPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 470 et seq.
Migratory Bird Treaty Act (MTBA)
See Appendix F for description of requirements.
16 U.S.C. §§ 703 et seq.
Clean Air Act (CAA)
See Appendix F for description of requirements.
42 U.S.C. §§ 7401 et seq.
Archeological Resources Protection Act (ARPA)
The Archeological Resources Protection Act generally prohibits the damage, removal, excavation, or
16 U.S.C. §§ 470aa et seq.
alteration of any archeological resource located on public lands or Indian lands, except pursuant to a permit
issued by the appropriate federal land manager.
Safe Drinking Water Act (SDWA)
The Safe Drinking Water Act provides federal authority for the establishment of standards and treatment
42 U.S.C. §§ 300f et seq.
requirements for public water supplies, control of the underground injection of wastes, and protection of
sources of drinking water. Federal agencies involved in certain activities that may contaminate drinking
water are subject to all federal, state, and local requirements concerning the protection of water systems to
the same extent as any person is subject to such requirements.
CRS-52
Laws Waived
General Requirements
Noise Control Act (NCA)
Pursuant to the Noise Control Act, the federal government has established standards for maximum sound
42 U.S.C. §§ 4901 et seq.
levels generated from a variety of products. In addition, section 4 of the NCA requires federal agencies,
subject to presidential exemption, to comply with federal, state, interstate, and local requirements respecting
control and abatement of environmental noise to the same extent that any person is subject to such
requirements.
Solid Waste Disposal Act (SWDA), as amended by
Through the SWDA, as amended by RCRA, entities that transport or produce solid or hazardous waste are
the Resource Conservation and Recovery Act
required to comply with regulations concerning the management, production, and storage of waste.
(RCRA)
Moreover, each federal agency engaged in any activity resulting, or which may result, in the disposal or
42 U.S.C. §§ 6901 et seq.
management of solid waste or hazardous waste is subject to all federal, state, and local requirements
concerning such waste to the same extent as any person is subject to such requirements.
Comprehensive Environmental Response,
CERCLA established broad federal authority to respond to the release or threatened release of hazardous
Compensation, and Liability Act (CERCLA)
substances. Among other things, it established requirements for closed and abandoned hazardous waste sites,
42 U.S.C. §§ 9601 et seq.
and provided for liability of persons responsible for the release of hazardous waste at these locations.
Federal agencies and instrumentalities are subject to these requirements to the same extent as
nongovernmental entities, including with respect to liability.
Federal Land Policy and Management Act
The Federal Land Policy and Management Act establishes guidelines for the management and protection of
(FLPMA)
federal public lands, as administered by the Secretary of the Interior through the Bureau of Land
43 U.S.C. §§ 1701 et seq.
Management (in coordination with the Secretary of Agriculture with respect to lands in the National Forest
System), and imposes procedural requirements for land transfers and exchanges. In developing land use
plans, the Secretary is required to consider protection of areas of critical environmental concern and
compliance with federal and state pollution control laws. The Secretary of the Interior, with respect to the
public lands, and, the Secretary of Agriculture, with respect to lands within the National Forest System, are
authorized to grant rights-of-way through such lands to other federal agencies, subject to terms and
conditions imposed by the Secretary authorizing the right-of-way.
CRS-53
Laws Waived
General Requirements
Fish and Wildlife Coordination Act (FWCA)
The Fish and Wildlife Coordination Act generally provides that whenever the waters of any stream or other
16 U.S.C. §§ 661 et seq.
body of water are proposed to be modified by a federal agency, the agency must first consult with the United
States Fish and Wildlife Service, Department of the Interior, and the head of the agency exercising
administration over the wildlife resources of the state where the construction will occur, with a view to the
conservation of wildlife resources.
Archaeological and Historic Preservation Act
The purpose of the Archeological and Historical Preservation Act is to provide for the preservation of
(AHPA)
historical and archeological data which might otherwise be irreparably lost or destroyed as the result of,
16 U.S.C. §§ 469 et seq.
among other things, any alteration of terrain caused by a federal construction project. If a federal agency
becomes aware that its activities in connection with a construction project may cause irreparable loss or
destruction of significant scientific, prehistorical, historical, or archeological data, the agency must notify
the Secretary of the Interior. If the Secretary deems such data to be significant and in danger of being
irrevocably lost or destroyed, he is authorized to take action to protect and recover it.
Antiquities Act
The Antiquities Act authorizes the President to declare as national monuments historic landmarks, historic
16 U.S.C. §§ 431 et seq.
and prehistoric structures, and other objects of historic or scientific interest. This land is then withdrawn
from any other use. The Secretaries of the Interior, Agriculture, and the Army may issue permits to qualified
scientific or educational institutions for the excavation of archaeological sites and gathering of objects of
antiquity on lands under their respective jurisdictions. Penalties are provided for damaging resources
protected under the Act.
Historic Sites, Buildings, and Antiquities Act
The Historic Sites, Buildings, and Antiquities Act declares it the national policy to preserve histories, sites,
(HSBAA)
buildings, and objects of national significance. The Secretary of the Interior, through the National Park
16 U.S.C. §§ 461 et seq.
Service, is charged with implementing the policy of the HSBAA, including through the acquisition,
maintenance, administration of historic sites. Persons who violate any rules or regulations promulgated
under the HSBAA may be subject to a fine.
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Laws Waived
General Requirements
Arizona-Idaho Conservation Act of 1988
The Arizona-Idaho Conservation Act established the San Pedro Riparian National Conservation Area,
16 U.S.C.§§ 460xx et seq.
consisting of public lands surrounding the San Pedro River in Cochise County, Arizona. The Secretary of
the Interior is responsible for managing the area in a manner that conserves and protects its wildlife and other
resources. The Secretary may only permit uses of the conservation area that are determined to further the
primary purposes for which the conservation area was established. Except in limited circumstances,
motorized vehicles are permitted only on designated roads. Persons who violate the Act or its implementing
regulations are subject to a fine and/or imprisonment.
Wild and Scenic Rivers Act
The Wild and Scenic Rivers Act establishes a National Wild and Scenic Rivers System (System) protecting
16 U.S.C. §§ 1281 et seq.
rivers and adjacent lands with important scenic, recreational, geologic, fish and wildlife, historic, cultural,
or other similar values. Components of the System are to be administered in a manner that protects and
enhances the free-flowing and undeveloped nature of areas covered by the Act.
Farmland Protection Policy Act (FPPA)
The Farmland Protection Policy Act requires the Department of Agriculture, in cooperation with other
7 U.S.C. §§ 4201 et seq.
federal entities, to develop criteria for identifying the effects of federal programs on the conversion of
farmland to nonagricultural uses. Federal agencies are thereafter required to use this criteria to identify
farmland that is converted by federal programs and take into account the adverse effects of such programs
on the preservation of farmland. Agencies must consider alternative actions, as appropriate, that could lessen
such adverse effects.
Administrative Procedure Act (APA)
See Appendix F for description of requirements.
5 U.S.C. §§ 551 et seq.
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Appendix I. Legal Requirements Waived by DHS for the Construction of Physical Barriers and
Roads in Hidalgo County, Texas
Laws Waived
General Requirement
National Environmental Policy Act (NEPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 4321 et seq.
Endangered Species Act (ESA)
See Appendix F for description of requirements.
16 U.S.C. §§ 1531 et seq.
Federal Water Pollution Control Act
See Appendix F for description of requirements.
(Clean Water Act)
33 U.S.C. §§ 1251 et seq.
National Historic Preservation Act (NHPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 470 et seq.
Migratory Bird Treaty Act (MTBA)
See Appendix F for description of requirements.
16 U.S.C. §§ 703 et seq.
Clean Air Act (CAA)
See Appendix F for description of requirements.
42 U.S.C. §§ 7401 et seq.
Archeological Resources Protection Act
See Appendix H for description of requirements.
(ARPA) 16 U.S.C. §§ 470aa et seq.
Safe Drinking Water Act (SDWA)
See Appendix H for description of requirements.
42 U.S.C. §§ 300f et seq.
Noise Control Act (NCA)
See Appendix H for description of requirements.
42 U.S.C. §§ 4901 et seq.
CRS-56
Laws Waived
General Requirement
Solid Waste Disposal Act (SWDA), as amended
See Appendix H for description of requirements.
by the Resource Conservation and Recovery Act
(RCRA)
42 U.S.C. §§ 6901 et seq.
Comprehensive Environmental Response,
See Appendix H for description of requirements.
Compensation, and Liability Act (CERCLA)
42 U.S.C. §§ 9601 et seq.
Federal Land Policy and Management Act
See Appendix H for description of requirements.
(FLPMA)
43 U.S.C. §§ 1701 et seq.
Fish and Wildlife Coordination Act (FWCA)
See Appendix H for description of requirements.
16 U.S.C. §§ 661 et seq.
Archaeological and Historic Preservation Act
See Appendix H for description of requirements.
(AHPA)
16 U.S.C. §§ 469 et seq.
Antiquities Act
See Appendix H for description of requirements.
16 U.S.C. §§ 431 et seq.
Historic Sites, Buildings, and Antiquities Act
See Appendix H for description of requirements.
(HSBAA)
16 U.S.C. §§ 461 et seq.
Farmland Protection Policy Act (FPPA)
See Appendix H for description of requirements.
7 U.S.C. §§ 4201 et seq.
Administrative Procedure Act (APA)
See Appendix F for description of requirements.
5 U.S.C. §§ 551 et seq.
CRS-57
Laws Waived
General Requirement
Coastal Zone Management Act (CZMA)
See Appendix F for description of requirements.
16 U.S.C. §§ 1451 et seq.
National Wildlife Refuge System
See Appendix G for description of requirements.
Administration Act
16 U.S.C. §§ 668dd-668ee
Fish and Wildlife Act of 1956
The Fish and Wildlife Act establishes a comprehensive national fish, shellfish, and wildlife resources
16 U.S.C. §§ 742a et seq.
policy. The law requires the Secretary of Interior to develop measures for “maximum sustainable
production of fish,” make economic studies of the industry and recommend measures to insure the stability
of fisheries, take steps “required for the development, management, advancement, conservation and
protection of the fisheries resources,” and take steps “required for the development, management,
advancement, conservation, and protection of fish and wildlife resources” through research, acquisition of
land or water, development of existing facilities, and other means.
Rivers and Harbors Act of 1899
The Rivers and Harbors Act makes it a misdemeanor to discharge refuse into the navigable waters of the
33 U.S.C. § 403
United States without a permit. It also makes it a misdemeanor to excavate, fill, or alter the course,
condition, or capacity of any port, harbor, channel, or other area within the reach of the Act without a
permit.
Eagle Protection Act
The Eagle Protection Act provides for the protection of the bald eagle and the golden eagle by prohibiting
16 U.S.C. §§ 668 et seq.
the taking, possession, and commerce of such birds.
Native American Graves Protection and
The Native American Graves Protection and Repatriation Act requires federal agencies and institutions
Repatriation Act (NAGPRA)
receiving federal funding to return Native American cultural items and human remains to their respective
25 U.S.C. §§ 3001 et seq.
people. If federal officials anticipate that activities on federal and tribal land might have an effect on
American Indian burial, or their activities inadvertently discover such burials, they must consult with
American Indian tribal officials as part of their compliance duties.
American Indian Religious Freedom Act
The American Indian Religious Freedom Act ensures American Indian groups access to religious sites by
(AIRFA)
directing federal agencies to consult with American Indian spiritual leaders to determine appropriate
42 U.S.C. § 1996
procedures to protect access and other religious rights.
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Laws Waived
General Requirement
Religious Freedom Restoration Act
The Religious Freedom Restoration Act mandates that strict scrutiny be applied when a violation of the
42 U.S.C. § 2000bb
Free Exercise Clause of the First Amendment is committed by a federal actor.
Federal Grant and Cooperative Agreement Act
The Federal Grant and Cooperative Agreement Act governs the use of “non-standard” agreements, such as
of 1977
grants or cooperative agreements offered by federal agencies. This Act imposes standards mandating the
31 U.S.C. §§ 6303-6305
use of procurement contracts in some situations while allowing the use of non-standard agreements in other
situations.
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Appendix J. Legal Requirements Waived by DHS for the Construction of Physical Barriers and
Roads at Various Project Areas Located in California, Arizona, New Mexico, and Texas
Laws Waived
General Requirement
National Environmental Policy Act (NEPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 4321 et seq.
Endangered Species Act (ESA)
See Appendix F for description of requirements.
16 U.S.C. §§ 1531 et seq.
Federal Water Pollution Control Act
See Appendix F for description of requirements.
(Clean Water Act)
33 U.S.C. §§ 1251 et seq.
National Historic Preservation Act (NHPA)
See Appendix F for description of requirements.
16 U.S.C. §§ 470 et seq.
Migratory Bird Treaty Act (MTBA)
See Appendix F for description of requirements.
16 U.S.C. §§ 703 et seq.
Clean Air Act (CAA)
See Appendix F for description of requirements.
42 U.S.C. §§ 7401 et seq.
Archeological Resources Protection Act (ARPA) 16
See Appendix H for description of requirements.
U.S.C. §§ 470aa et seq.
Safe Drinking Water Act (SDWA)
See Appendix H for description of requirements.
42 U.S.C. §§ 300f et seq.
Noise Control Act (NCA)
See Appendix H for description of requirements.
42 U.S.C. §§ 4901 et seq.
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Laws Waived
General Requirement
Solid Waste Disposal Act (SWDA), as amended by the
See Appendix H for description of requirements.
Resource Conservation and Recovery Act (RCRA)
42 U.S.C. §§ 6901 et seq.
Comprehensive Environmental Response, Compensation,
See Appendix H for description of requirements.
and Liability Act (CERCLA)
42 U.S.C. §§ 9601 et seq.
Federal Land Policy and Management Act (FLPMA)
See Appendix H for description of requirements.
43 U.S.C. §§ 1701 et seq.
Fish and Wildlife Coordination Act (FWCA)
See Appendix H for description of requirements.
16 U.S.C. §§ 661 et seq.
Archaeological and Historic Preservation Act (AHPA)
See Appendix H for description of requirements.
16 U.S.C. §§ 469 et seq.
Antiquities Act
See Appendix H for description of requirements.
16 U.S.C. §§ 431 et seq.
Historic Sites, Buildings, and Antiquities Act (HSBAA)
See Appendix H for description of requirements.
16 U.S.C. §§ 461 et seq.
Farmland Protection Policy Act (FPPA)
See Appendix H for description of requirements.
7 U.S.C. §§ 4201 et seq.
Administrative Procedure Act (APA)
See Appendix F for description of requirements.
5 U.S.C. §§ 551 et seq.
Coastal Zone Management Act (CZMA)
See Appendix F for description of requirements.
16 U.S.C. §§ 1451 et seq.
National Wildlife Refuge System Administration Act
See Appendix G for description of requirements.
16 U.S.C. §§ 668dd-668ee
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Laws Waived
General Requirement
Fish and Wildlife Act of 1956
See Appendix I for description of requirements.
16 U.S.C. §§ 742a et seq.
Rivers and Harbors Act of 1899
See Appendix I for description of requirements.
33 U.S.C. § 403
Eagle Protection Act
See Appendix I for description of requirements.
16 U.S.C. §§ 668 et seq.
Native American Graves Protection and Repatriation Act
See Appendix I for description of requirements.
(NAGPRA)
25 U.S.C. §§ 3001 et seq.
American Indian Religious Freedom Act (AIRFA)
See Appendix I for description of requirements.
42 U.S.C. § 1996
Religious Freedom Restoration Act
See Appendix I for description of requirements.
42 U.S.C. § 2000bb
Wild and Scenic Rivers Act
See Appendix H for description of requirements.
16 U.S.C. § 1281 et seq.
The Wilderness Act
See Appendix G for description of requirements.
16 U.S.C. §§ 1131a et seq.
Otay Mountain Wilderness Act of 1999
The Otay Mountain Wilderness Act designates certain public lands in California as “wilderness”
P.L. 106-145
to be protected under the Wilderness Act. Any lands acquired by the United States within the
designated area shall become part of the “wilderness area” and subject to the protections of the
Wilderness Act.
Section 102(29) and 103 of Title I of the California
The California Desert Protection Act designates certain lands within the Inyo National Forest as
Desert Protection Act
“wilderness” to be protected under the Wilderness Act.
P.L. 103-433, 50 Stat. 1827
CRS-62
Laws Waived
General Requirement
National Park Service General Authorities Act
The National Park Service General Authorities Act is the organic statute for the National Parks
16 U.S.C. §§ 1a-1 et seq.
Service. The Act calls for the preservation of certain lands and empowers the National Parks
Service to issue regulations and manage these lands.
Sections 401(7), 403, and 404 of the National Parks and
The National Parks and Recreation Act designates the Organ Pipe Cactus Sational Monument in
Recreation Act 0f 1978
Arizona as “wilderness” to be administered under the Wilderness Act.
P.L. 95-625
Sections 301(a)-(f) of the Arizona Desert Wilderness Act
The Arizona Desert Wilderness Act designates certain lands in the Havasu National Wildlife
P.L. 101-628
Refuge, Imperial National Wildlife Refuge, Kofa National Wildlife Refuge, and Cabeza Prieta
National Wildlife Refuge (all in Arizona) as components of the National Wilderness Preservation
System to be administered under the Wilderness Act.
National Forest Management Act of 1976
The National Forest Management Act is the organic statute for the National Parks Service. It
16 U.S.C. §§ 1600 et seq.
empowers the Secretary of the Interior to administer the national park system.
Multiple Use and Sustained Yield Act of 1960
The Multiple Use and Sustained Yield Act declares that national forests are for outdoor recreation,
16 U.S.C. §§ 528-531
range, timber, watershed, and fish and wildlife purposes. It seeks to ensure that the national forest
are managed in furtherance of these purposes and in a sustainable manner.
Federal Land Policy and Management Act (FLPMA)
See Appendix H for description of requirements.
43 U.S.C. §§ 1701 et seq.