Even before these setbacks, the border wall had unnerved a majority of Lower Rio Grande residents. Bullying private landowners was one issue. Disregarding conservation values that so many Lower Rio Grande residents hold dear was another.
“What’s happening is really sad,” said Jim Chapman, a resident of Weslaco and vice president of Friends of the Wildlife Corridor, a non-profit group that opposes the wall. “In many cases, the wall will slice through refuges, block animals, and ruin the experience people have worked so hard to develop. In a flood, animals won’t be able to escape. The wall will become their death trap.”
Since the 2,088-acre Santa Ana National Wildlife Refuge was established along the river in 1943, presidential administrations of both parties have rallied support in Congress and invested well over $100 million in environmental restoration along the Lower Rio Grande. Most of that money has been spent acquiring 270 parcels of land — 105,000 acres in total — along the U.S. shoreline as habitat for mammals, songbirds, and migrating birds. The Lower Rio Grande Valley National Wildlife Refuge, established in 1979, is responsible for managing most of the ground. The intent is to reverse over a century of human abuse and restore this part of the Rio Grande to some semblance of its natural condition.
Studies by the U.S. Fish and Wildlife Service, a unit of the Department of the Interior, and by other federal and state science groups, show the work has yielded promising results. The two federal refuges support the country’s most diverse communities of song and migrating birds, mammals, reptiles, and butterflies. Scientists have counted 429 species of birds, 44 species of mammals, 115 species of reptiles and amphibians, and 300 species of butterflies.
Previous presidential administrations and Congresses also approved an array of environmental statutes and an international treaty designed to encourage the animals and birds to thrive by securing habitat, protecting endangered species, and safeguarding the country’s most bountiful flyway for migratory birds.
Now, say critics, the White House, the Department of Homeland Security, and the Interior Department are ruining those restoration achievements. The most recent government maps indicate that substantial portions of the wall are meant to cut through and divide large blocks of lands owned and managed by the Lower Rio Grande Valley National Wildlife Refuge. The newest plans are a departure from the more sensitive construction of 55 miles of lower, less aggressive border fencing that were built along the river closer to Brownsville a decade ago.
“If I value land preservation and wildlife habitat restoration I would tend to hold little if any value for the wall, particularly if it disturbs already secured land for land preservation,” said Carlos Rubinstein, principal of RSAH2O, an environmental consultancy, who earlier in his career served as chairman of the Texas Water Development Board and a commissioner of the Texas Commission on Environmental Quality. “I would also hold little value for the wall if it impedes migration of wildlife.”
Also, the White House and the Interior Department are rewriting regulations of the bedrock environmental statutes that make federal refuges safe for animals and birds to feed, breed, and rest. Late in 2019, the administration rewrote the Endangered Species Act, making it easier to remove species from the endangered list and weakening protections for threatened species, the classification one step below endangered. Refuges in the Lower Rio Grande Valley are home to more than a dozen threatened and endangered birds and animals.
This year, the administration proposed to alter the Migratory Bird Treaty Act to make legal what otherwise has been illegal since the treaty was ratified in 1918. The treaty had made it illegal to “take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter any migratory bird.” In plain language the law prohibited killing or sale of a migratory bird.
The administration wanted to alter the strict language by making legal so-called “incidental” – translation: unintentional — deaths of migrating birds. But on August 11, U.S. District Court Judge Valerie Caproni ruled that the administration’s rewrite was unlawful. If the change had become law, Exxon would likely not have been prosecuted and paid a $100 million fine for the accidental, unintentional killing of migratory birds with oil spilled from the Exxon Valdez disaster in March 1989.
There’s more. In August 2019, under his emergency powers authority, the president waived requirements for the government to conduct a thorough assessment of the environmental consequences of the new wall. And an administration that has asserted its stout support for private property rights is eager to condemn private land along the route of the wall under its eminent domain authority. Landowners are battling condemnation plans in court and in Congress.
“Being a Texan I value private property rights most of all,” said Rubinstein, the former TCEQ commissioner. “Any taking of land needs to be done with firm adherence of legal due process and proper valuation of the land. The scales are tipped against some land owners in certain situations and that would be hard to accept.”
Taken together, the border wall and the statute changes dramatically tilt protections for migrating birds and rare species in the opposite direction of what the federal government has been trying to do in the Lower Rio Grande Valley since the mid-20th century.