05-9518. Record of Decision for Customs and Border Protection's Office of Border Patrol Operation Rio Grande in the Office of Border Patrol McAllen Sector, Texas

AGENCY:

Bureau of Customs and Border Protection, Department of Homeland Security.

ACTION:

Record of decision general notice.

SUMMARY:

This Record of Decision (ROD) document announces the final decision regarding the Environmental Impact Statement (EIS) for the Office of Border Patrol's Operation Rio Grande regarding potential environmental impacts resulting from Customs and Border Protection's (CBP), Office of Border Patrol (OBP), deployment of the lighting, roads, fences, mowing and boat ramp construction on the United States and Mexican border in the McAllen Sector of the OBP. The final EIS for Operation Rio Grande was made available for public review and was filed for public review with the U.S. Environmental Protection Agency, which published it in the Federal Register on June 17, 2004. This ROD will be incorporated into the final EIS after publication. The Operation Rio Grande has five project actions covered by this EIS: Lighting installation (permanent and portable), road improvement, fencing construction, boat ramp construction, and mowing. These actions are intended to reduce the influx of illegal entrants and contraband into the McAllen Sector, increase arrest of those not deterred; increase safety for operations by OBP agents; decrease response time; and decrease the risk from drowning as victims attempt to cross the river and/or irrigation canals. Since September 11, 2001, terrorist activities have also become a major focus of the OBP. This EIS was prompted by a lawsuit brought by the Defenders of Wildlife because of the potential impact that OBP activities may have on the habitat of two endangered species in the area, the ocelot (Leopardus pardalis) and jaguarundi (Hepailurus yagouaroundi) cats. The adjustments to lighting and other construction and mowing activities are incorporated into this ROD and were agreed to by the OBP and the Defenders of Wildlife in the settlement agreement for Defenders of Wildlife v. Meissner. The final EIS reflects this agreement and states that no significant impacts occur to geology, soils, climate, or air quality. Short-term disturbances may occur to water resources. Aquatic systems could be impacted; however, the effects will decrease over time. The socioeconomic impacts would primarily be beneficial. Lastly, some immediate and direct impacts to wildlife from construction activities would occur. Smaller and less mobile wildlife such as amphibians, reptiles, and small mammals may be adversely impacted by heavy machinery. The increased noise and activity levels during constructions could temporarily disturb breeding behavior of some wildlife inhabiting the areas adjacent to the project; however, little permanent damage to the populations of such organisms would result. The proposed lighting improvements could potentially impact migration, dispersal, and foraging activities of nocturnal species. Two endangered species, the ocelot and jaguarundi, could potentially be impacted by the proposed project. These species are largely nocturnal, and it is expected they would avoid illuminated areas. Extensive coordination with the U.S. Fish and Wildlife Service was conducted to determine the position and direction of the proposed lighting structures to minimize the illumination to brush and other types of screening cover for these animals. Proposed mitigation measures such as road closures and habitat construction would increase the amount of habitat for these species. Reducing illegal immigrant traffic in the McAllen Sector would further reduce impacts to the habitat. Some, as yet, unidentified cultural resource sites may be impacted but mitigation will be provided through an initial assessment of the site, its anticipated severity, and proposals for the appropriate mitigation will be coordinated with the State Historic Preservation Officer.

FOR FURTHER INFORMATION CONTACT:

Bureau of Customs and Border Protection, Suite 3.4-D, 1300 Pennsylvania Avenue, NW., Washington DC 20229, Attn: Mr. Kevin Feeney. Mr. Feeney is also available at [phone] or at [e-mail]. No public comment period is required for the ROD.

Record of Decision

Operation Rio Grande Starr, Hidalgo, and Cameron Counties, Texas

I have reviewed the final Environmental Impact Statement (EIS) for Operation Rio Grande, as well as correspondence received in response to coordination and public review of the draft EIS.

Operation Rio Grande is a strategy initiated in August 1997 by the Office of Border Patrol (OBP, formerly the U.S. Border Patrol (BP)), a Federal law enforcement branch of the Bureau of Customs and Border Protection (CBP, which includes functions transferred from the former Immigration and Naturalization Service (INS)), to aid in reducing illegal immigration and drug trafficking along the Rio Grande corridor of the McAllen Sector of the OBP. The purpose of the proposed project is to facilitate OBP missions to reduce or eliminate illegal drug activity and illegal entry along the southwestern border of the United States and to reduce the flow of illegal immigrants into the United States.

A draft Environmental Assessment (EA) for Operation Rio Grande was circulated for review and comment to Federal, State, and local agencies and to organizations, public groups, and the local public known to have an interest in the project in September 1998. Comments received on the draft EA were addressed, and the EA became final in August 1999. However, the final EA was never distributed, because the Defenders of Wildlife filed a lawsuit in August 1999 (Defenders of Wildlife v. Meissner D.D.C. case no. 1:99CV02262) against the former INS and BP challenging Operation Rio Grande. This case was settled on September 8, 2000. Pursuant to the settlement agreement, OBP prepared an EIS that analyzed the potential beneficial and adverse impacts of Operation Rio Grande in accordance with the National Environmental Policy Act (NEPA) of 1969, as amended.

Five project actions were covered by the EIS: Lighting installation, road improvement, fencing construction, boat ramp construction, and mowing. These actions are intended to reduce the influx of illegal immigration and drugs into the McAllen Sector, especially into towns; increase arrests of those not deterred; increase safety for operations by OBP agents; decrease response time; and decrease the risk from drowning as illegal entrants attempt to cross the river and/or irrigation canals. In light of the September 11, 2001, terrorist activities, securing the U.S. borders against illegal entry has become an increased focus of the OBP. The proposed project actions presented in the EIS are anticipated to significantly aid in securing the U.S. border against illegal entry of any kind.

Two types of lighting are addressed in the final EIS: Permanent and portable. All portable lighting is currently in place; no more portable lighting is proposed in the final EIS. All proposed lighting is the permanent type. Proposed lighting locations were determined by the OBP agents in each McAllen Sector Station based on their knowledge of traffic in their station and on the site-specific needs of each station to deter or direct traffic in that station. Lighting acts as a deterrent to illegal immigration and smuggling, and as an aid to the OBP agents in capturing illegal entrants or smugglers after they have entered the United States. It also provides protection to illegal entrants from criminals on the United States side of the Rio Grande.

Road improvement (adding caliché to the road surface) is necessary to allow the present and incoming agents to effectively perform the functions required of them. Additionally, upgrading the most crucial roads to all-weather roads would lead to a reduction in the number of roads needed. All road improvements addressed in the final EIS are on existing roads; no new construction is planned. Caliché is the most benign all-weather topping available, and its use is proposed for Operation Rio Grande road improvements.

Border fences are located mostly in urbanized areas near the land Ports of Entry and are an effective deterrent to illegal drug and immigrant trafficking. Fencing also facilitates enforcement actions by hindering escape. Fencing has proved to be an effective measure for controlling the border.

The McAllen Sector currently has a fleet of 18 boats and none will be added to this fleet specifically because of Operation Rio Grande. The boats are used for surveillance, observation, and information gathering and, therefore, are operated as inconspicuously as possible. The boats are not used for pursuit since they are on international waters. Boat ramps are utilized along the Rio Grande and other large surface-water bodies by OBP agents and other law enforcement officers to deter and/or apprehend those involved in illegal activities. These illegal activities include drug smuggling and transport of illegal immigrants by boat, as well as persons involved in smuggling or trying to enter the United States illegally by wading or swimming.

Currently, under a Memorandum of Understanding between the U.S. International Boundary and Water Commission (USIBWC) and U.S. Fish and Wildlife Service (FWS), the USIBWC mows certain areas between the USIBWC levee and the Rio Grande once a year between July and October. Despite the annual mowing, some of the herbaceous vegetation grows tall enough to hinder the efforts of the OBP to apprehend illegal entrants and drug traffickers. Increased mowing would make it easier and safer for OBP agents to apprehend these persons.

The application of Operation Rio Grande dictates that a viable alternative be one that meets the purpose and need to develop a border security system that also meets the mission of the OBP. Two alternatives, the No-Action Alternative and the Preferred Alternative, were carried forward throughout the final EIS since all other alternatives (more lighting with larger coverage area, including some in National Wildlife Refuges and inside the USIBWC flood control levee; different placement and aiming of the lighting; additional boat ramps; different boat ramp locations; additional mowings; extensive fencing) were eliminated from consideration through a dynamic application of the intent of the NEPA process using interagency coordination and cooperation (final EIS, Section 2.3). Two public meetings for Operation Rio Grande were held in April 2001. The purpose of the meetings was to get public input on what issues and alternatives should be addressed in the EIS. The public's view, and concerns were used in the preparation of the EIS. One or more copies of the draft EIS (DEIS) were sent to State and Federal resource agencies, and the general public on February 20, 2003, requesting comments by April 14, 2003. However, a public notice soliciting comments on the DEIS was not published in the Federal Register until March 21, 2003, and the comment period was extended by letter and newspaper notice until May 5, 2003. Those comments are included in the final EIS in Appendix D.

The purpose of the actions, as noted in Section 1.2 of the final EIS, is to increase the efficiency and safety of the OBP agents and the safety of U.S. citizens and illegal entrants in the McAllen Sector while the OBP agents fulfill their obligations under U.S. laws and directives. It was noted in the final EIS that the number of OBP agents is not determined by Operation Rio Grande, although the method in which they are used is. The recommended plan is a mix of various actions to provide the optimum multitiered approach to achieve the purpose of Operation Rio Grande.

Under the No-Action Alternative, the actions proposed in the final EIS would not occur and present practices would continue. The No-Action Alternative would not increase or decrease the number of OBP agents in the sector but would tend to concentrate them along the river. Because of a Congressional Mandate (final EIS, Section 2.1), there will be an increase in the number of OBP agents in all areas of the country, with a concomitant increase in the number of vehicles.

The following actions comprise the recommended plan for Operation Rio Grande at the six OBP stations in the McAllen Sector:

Rio Grande City Station: (3.5 miles of permanent lighting and 6 boat ramps); McAllen Station (4 miles of permanent lighting, 6.4 miles of road improvement, and 2 boat ramps); Mercedes Station (11.1 miles of permanent lighting, 30 miles of road improvement, and 3 boat ramps); Harlingen Station (1.7 miles of permanent lighting (43 portable lights along 4.6 miles currently exist), 16 miles of road improvement, and 3 boat ramps); Brownsville Station (19 miles of road improvement, 5 boat ramps, 3.8 miles of fencing, and mowing (79 portable lights over a 13-mile distance and 30 permanent light poles along 1.5 miles currently exist)); and Port Isabel Station (16 miles of road improvement, 4 boat ramps, and 1.6 miles of fencing (64 portable lights along 11 miles currently exist)). The Harlingen, Brownsville, and Port Isabel Stations currently have portable lighting and the Brownsville Station currently has permanent lighting, as agreed to under the settlement of the lawsuit noted above. No new lighting is proposed for the Brownsville and Port Isabel Stations and only permanent lighting is proposed for the Harlingen Station. The current permanent/portable lighting at these three stations, however, was addressed in the final EIS.

The proposed project is not expected to produce any significant long-term or cumulative adverse impacts on the human or natural environment, as defined in the Council of Environmental Quality Regulations (40 CFR 1508.27). As noted in detail in the final EIS, essentially no impacts, beneficial or adverse, to the physiography, geology, soils, climate, water resources, aquatic systems, wildlife, cultural resources, aesthetics, noise, or air quality of the area are anticipated and there were no indications of hazardous wastes. There will be some local, beneficial impacts to vegetation from reduced trampling of vegetation and littering by illegal entrants and drug traffickers and from road closures. The proposed lighting improvements could potentially have minor, local adverse impacts on migration, dispersal, and foraging activities of nocturnal species. Two endangered species could potentially be impacted by the proposed project, the ocelot (Leopardus pardalis) and jaguarundi (Hepailurus yagouaroundi). These species are largely nocturnal and it is expected they would avoid illuminated areas. Extensive coordination with the FWS was conducted to determine the position and direction of the proposed lighting structures to minimize the illumination to brush and other types of screening cover. Proposed mitigation measures, such as road closures and habitat construction, would increase the amount of habitat for these species. Reducing illegal immigrant traffic in the McAllen Sector would further reduce impacts to the habitat. Therefore, both the final EIS and the FWS Biological Opinion conclude that no significant adverse impacts will accrue to these species.

The only significant impacts would be socioeconomic. The socioeconomic impacts would be long-term and beneficial, both nationally and locally, primarily from the long-term reduction of flow of illegal drugs into the United States and the concomitant effects upon the Nation's health and economy, drug-related crimes, community cohesion, property values, and traditional family values. Residents of the border towns would benefit from increased security, a reduction in illegal drug-smuggling activities and the number of violent crimes, less damage to and loss of personal property, and less financial burden for entitlement programs. This would be accompanied by the concomitant benefits of reduced enforcement and insurance costs. Minor short-term local employment may be generated during the construction phase of the proposed action.

I have reviewed and evaluated the documents concerning the proposed actions, views of other interested agencies and parties, and the various practical means to avoid or minimize environmental impacts. Based on these considerations, I conclude that all practical means to avoid or minimize environmental impacts have been incorporated into the preferred plan. I find the preferred plan to be economically justified, in compliance with environmental statutes, and in the public interest.

Dated: April 15, 2005.

Robert C. Bonner,

Commissioner, Bureau of Customs and Border Protection.