2018-21930. Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended

AGENCY:

Office of the Secretary, Department of Homeland Security.

ACTION:

Notice of determination.

SUMMARY:

The Secretary of Homeland Security has determined, pursuant to law, that it is necessary to waive certain laws, regulations, and other legal requirements in order to ensure the expeditious construction of barriers and roads in the vicinity of the international land border of the United States in Cameron County in the State of Texas.

DATES:

This determination takes effect on October 10, 2018.

SUPPLEMENTARY INFORMATION:

Important mission requirements of the Department of Homeland Security (“DHS”) include border security and the detection and prevention of illegal entry into the United States. Border security is critical to the nation's national security. Recognizing the critical importance of border security, Congress has mandated DHS to achieve and maintain operational control of the international land border. Secure Fence Act of 2006, Public Law 109-367, § 2, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1701 note). Congress defined “operational control” as the prevention of all unlawful entries into the United States, including entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other contraband. Id. Consistent with that mandate from Congress, the President's Executive Order on Border Security and Immigration Enforcement Improvements directed executive departments and agencies to deploy all lawful means to secure the southern border. Executive Order 13767, § 1. In order to achieve that end, the President directed, among other things, that I take immediate steps to prevent all unlawful entries into the United States, including the immediate construction of physical infrastructure to prevent illegal entry. Executive Order 13767, § 4(a).

Congress has provided to the Secretary of Homeland Security a number of authorities necessary to carry out DHS's border security mission. One of those authorities is found at section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended (“IIRIRA”). Public Law 104-208, Div. C, 110 Stat. 3009-546, 3009-554 (Sept. 30, 1996) (8 U.S.C. 1103 note), as amended by the REAL ID Act of 2005, Public Law 109-13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) (8 U.S.C. 1103 note), as amended by the Secure Fence Act of 2006, Public Law 109-367, § 3, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1103 note), as amended by the Department of Homeland Security Appropriations Act, 2008, Public Law 110-161, Div. E, Title V, § 564, 121 Stat. 2090 (Dec. 26, 2007). In section 102(a) of IIRIRA, Congress provided that the Secretary of Homeland Security shall take such actions as may be necessary to install additional physical barriers and roads (including the removal of obstacles to detection of illegal entrants) in the vicinity of the United States border to deter illegal crossings in areas of high illegal entry into the United States. In section 102(b) of IIRIRA, Congress mandated the installation of additional fencing, barriers, roads, lighting, cameras, and sensors on the southwest border. Finally, in section 102(c) of IIRIRA, Congress granted to the Secretary of Homeland Security the authority to waive all legal requirements that I, in my sole discretion, determine necessary to ensure the expeditious construction of barriers and roads authorized by section 102 of IIRIRA.

Determination and Waiver

Section 1

The United States Border Patrol's Rio Grande Valley Sector is an area of high illegal entry. For the last several years, the Rio Grande Valley Sector has seen more apprehensions of illegal aliens than any other sector of the United States Border Patrol (“Border Patrol”). For example, in fiscal year 2017 alone, Border Patrol apprehended over 137,000 illegal aliens. In that same year Border Patrol seized approximately 260,000 pounds of marijuana and approximately 1,200 pounds of cocaine.

In order to satisfy the need for additional border infrastructure in the Rio Grande Valley Sector, DHS will take action to construct barriers and roads. DHS will construct mechanical gates and roads within gaps of existing barriers in the vicinity of the United States border in the Rio Grande Valley Sector. The segments of the border within which such construction will occur are referred to herein as the “project area” and are more specifically described in Section 2 below.

Section 2

I determine that the following areas in the vicinity of the United States border, located in Cameron County in the State of Texas, within the United States Border Patrol's Rio Grande Valley Sector, are areas of high illegal entry (the “project area”):

• Starting approximately three-tenths (0.3) of a mile west of a gap in the existing levee wall commonly referred to as the Anacua gate location, which is situated at the intersection of Wichita Street and the International Boundary and Water Commission (IBWC) levee approximately one and one-half (1.5) miles south of the intersection of Wichita Street with US Route 281, and extending to approximately three-tenths (0.3) of a mile east of the Anacua gate location.
• Starting approximately three-tenths (0.3) of a mile west of a gap in the existing levee wall commonly referred to as the Webber Road gate location, which is situated at the intersection of Webber Road and the IBWC levee located approximately eight-tenths (0.8) of a mile southwest of the intersection of Webber Road with US Route 281, and extending approximately three-tenths (0.3) of a mile east of the Webber Road gate location.
• Starting approximately three-tenths (0.3) of a mile southwest of a gap in the existing levee wall commonly referred to as the Cantu Road gate location, which is situated at the intersection of Avilia Road and the IBWC levee located approximately eight-tenths of a mile south of the intersection of Avilia Road with US Route 281, and extending approximately three-tenths (0.3) of a mile northeast of the Cantu Road gate location.
• Starting approximately three-tenths (0.3) of a mile west of a gap in the existing levee wall commonly referred to as the Garza Sandpit Road gate location, which is situated at the intersection of the County Road 677 and the IBWC levee located approximately two-tenths (0.2) of a mile southwest of the intersection of County Road 677 with US Route 281, and extending approximately three-tenths (0.3) of a mile northeast of the Garza Sandpit Road gate location.
• Starting approximately three-tenths (0.3) of a mile northwest of a gap in the existing levee wall commonly referred to as the Pool Road gate location, which is situated at the intersection of Domanski Drive with the IBWC levee located approximately one (1) mile south of the intersection of Domanski Drive and US Route 281, and extending approximately three-tenths (0.3) of a mile southeast of the Pool Road gate location.
• Starting approximately three-tenths (0.3) of a mile northwest of a gap in the existing levee wall commonly referred to as the Flor De Mayo gate location, which is situated at the intersection of Flor De Mayo Road and the IBWC levee located approximately seven-tenths (0.7) of a mile southwest of the intersection of Flor De Mayo Road with US Route 281, and extending approximately three-tenths (0.3) of a mile southeast of the Flor De Mayo Road gate location.
• Starting approximately three-tenths (0.3) of a mile northwest of a gap in the existing levee wall commonly referred to as the Impala Road gate location, which is situated at the intersection of an unnamed road and the IBWC levee (said unnamed road is approximately 250 feet long from its point of intersection with the IBWC levee and a point located approximately 100 feet northwest of the intersection of Impala Drive and Gazelle Avenue) located approximately one (1) mile east of the Brownsville/Veterans Port of Entry, and extending approximately three-tenths (0.3) of a mile southeast of the Impala Road gate location.
• Starting approximately three-tenths (0.3) of a mile west of a gap in the existing levee wall commonly referred to as the South Point Road gate location, which is situated at the intersection of South Point Road and the IBWC levee located approximately seven-tenths (0.7) of a mile south of the intersection of South Point Road with Southmost Boulevard, and extending approximately three-tenths (0.3) of a mile northeast of the South Point Road gate location.
• Starting approximately three-tenths (0.3) of a mile south of a gap in the existing levee wall commonly referred to as the Loops Sandpit gate location, which is situated at the intersection of an unnamed road and the IBWC levee located approximately 65 feet east of the intersection of Alaska Road with S. Oklahoma Drive, and extending approximately three-tenths (0.3) of a mile north of the Loops Sandpit gate location.
• Starting approximately three-tenths (0.3) of a mile south of a gap in the existing levee wall commonly referred to as the Implement Shed gate location, which is situated at the intersection of County Road 142 and the IBWC levee located approximately 675 feet east of the intersection of Oklahoma Avenue with County Road 142, and extending approximately three-tenths (0.3) of a mile north of the Implement Shed gate location.
• Starting approximately three-tenths (0.3) of a mile south of a gap in the existing levee wall commonly referred to as the Florida Road gate location, which is situated at the intersection of Florida Road and the IBWC levee located approximately 600 feet east of the intersection of Oklahoma Avenue with Florida Road, and extending approximately three-tenths (0.3) of a mile north of the Florida Road gate location.

There is presently an acute and immediate need to construct physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States in the project area. In order to ensure the expeditious construction of the barriers and roads in the project area, I have determined that it is necessary that I exercise the authority that is vested in me by section 102(c) of IIRIRA.

Accordingly, pursuant to section 102(c) of IIRIRA, I hereby waive in their entirety, with respect to the construction of roads and physical barriers (including, but not limited to, accessing the project area, creating and using staging areas, the conduct of earthwork, excavation, fill, and site preparation, and installation and upkeep of physical barriers, roads, supporting elements, drainage, erosion controls, safety features, lighting, cameras, and sensors) in the project area, all of the following statutes, including all federal, state, or other laws, regulations, and legal requirements of, deriving from, or related to the subject of, the following statutes, as amended: The National Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852 (Jan. 1, 1970) (42 U.S.C. 4321 et seq.)); the Endangered Species Act (Pub. L. 93-205, 87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)); the Federal Water Pollution Control Act (commonly referred to as the Clean Water Act (33 U.S.C. 1251 et seq.)); the National Historic Preservation Act (Pub. L. 89-665, 80 Stat. 915 (Oct. 15, 1966), as amended, repealed, or replaced by Pub. L. 113-287 (Dec. 19, 2014) (formerly codified at 16 U.S.C. 470 et seq., now codified at 54 U.S.C. 100101 note and 54 U.S.C. 300101 et seq.)); the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.); the Migratory Bird Conservation Act (16 U.S.C. 715 et seq.); the Clean Air Act (42 U.S.C. 7401 et seq.); the Archeological Resources Protection Act (Pub. L. 96-95 (16 U.S.C. 470aa et seq.)); the Paleontological Resources Preservation Act (16 U.S.C. 470aaa et seq.); the Federal Cave Resources Protection Act of 1988 (16 U.S.C. 4301 et seq.); the Safe Drinking Water Act (42 U.S.C. 300f et seq.); the Noise Control Act (42 U.S.C. 4901 et seq.); the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. 9601 et seq.); the Archaeological and Historic Preservation Act (Pub. L. 86-523, as amended, repealed, or replaced by Pub. L. 113-287 (Dec. 19, 2014) (formerly codified at 16 U.S.C. 469 et seq., now codified at 54 U.S.C. 312502 et seq.)); the Antiquities Act (formerly codified at 16 U.S.C. 431 et seq., now codified 54 U.S.C. 320301 et seq.); the Historic Sites, Buildings, and Antiquities Act (formerly codified at 16 U.S.C. 461 et seq., now codified at 54 U.S.C. 3201-320303 & 320101-320106); the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.); the Coastal Zone Management Act (Pub. L. 92-583 (16 U.S.C. 1451, et seq.)); the Federal Land Policy and Management Act (Pub. L. 94-579 (43 U.S.C. 1701 et seq.)); the National Wildlife Refuge System Administration Act (Pub. L. 89-669, 16 U.S.C. 668dd-668ee); National Fish and Wildlife Act of 1956 (Pub. L. 84-1024 (16 U.S.C. 742a, et seq.)); the Fish and Wildlife Coordination Act (Pub. L. 73-121 (16 U.S.C. 661 et seq.)); the Administrative Procedure Act (5 U.S.C. 551 et seq.); the River and Harbors Act of 1899 (33 U.S.C. 403)); the Eagle Protection Act (16 U.S.C. 668 et seq.); the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq.); and the American Indian Religious Freedom Act (42 U.S.C. 1996).

This waiver does not revoke or supersede the previous waiver published in the Federal Register on April 8, 2008 (73 FR 19078), which shall remain in full force and effect in accordance with its terms. I reserve the authority to execute further waivers from time to time as I may determine to be necessary under section 102 of IIRIRA.

Dated: October 2, 2018.

Kirstjen M. Nielsen,

Secretary of Homeland Security.