Marin: 18 feet concrete levee wall would violate treaty with Mexico

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WESLACO, RGV – The Department of Homeland Security cannot build an 18-foot concrete wall inside the Hidalgo County floodways without violating a 1970 treaty with Mexico, says International Boundary and Water Commissioner Carlos Marin.

In an exclusive interview with the Guardian during his visit to the Rio Grande Valley last week, Marin said DHS would only be able to build a concrete wall to the height of levees. Anything above that would have to be a fence that allows floodwater through, he said.

“There is a misperception that there will be an 18-foot wall in Hidalgo County. No. We will protest like hell if that happens,” said Marin, after attending an IBWC Citizen’s Forum in Weslaco.

“Anything higher than the level of the levees would be an obstruction to the flows and be a violation of the 1970 treaty.”

A clause in the 1970 U.S.-Mexico Boundary Treaty says that each country will not build anything that will cause any deflection or obstruction to normal or flood flows from the Rio Grande.

IBWC has wanted to repair parts of the levees in Cameron and Hidalgo counties for sometime but has never been given enough funding by the federal government.

“For the most part the levees are pretty much at the elevation we need them,” Marin said. “There are some areas where we need to raise them a maximum of three feet but there are other areas where we only need to raise them six inches to a foot.”

Hidalgo county commissioners also want action taken because of the enormous damage that would occur if the levees were breached following a tropical storm or a hurricane. The commissioners have been warned by FEMA that parts of the county will be officially listed as a flood zone if the levees are not repaired.

In order to avoid that happening, Hidalgo commissioners having been working on a plan with DHS that would see the levees repaired while also satisfying the federal government’s plan for a border fence. In February, Homeland Security Secretary Michael Chertoff announced a tentative deal with Hidalgo County for a combined levee-wall project covering 22 miles. The media was told the concrete wall would be 18 feet high.

Marin said his agency has seen the hydraulic models prepared by DHS for the levee-wall plan and they look okay. “As long as they do what they say, we are okay with them,” he said.

Those parts of the Valley with narrow floodways need taller levees while those with wider floodways need shorter levees. Marin said he estimates that the tallest levees in Hidalgo County are 14 feet, while the tallest in Cameron County are about 12 feet. If that is the case and if the 1970 treaty is to be adhered to, the highest a concrete wall in Hidalgo County could be built is 14 feet and in many places it would be lower than that. “To get to 18 feet, the rest would have to be some kind of fence,” Marin said.

Marin also spoke about the situation in Los Ebanos in Hidalgo County, an area that, because it does not have a levee, is slated to get a border fence. Even though there is no levee there, the IBWC will still have role to play, Marin said.

“In Los Ebanos, the fence has to be out of the floodway. If it is in the floodway we are going to have to review it in detail. If we are satisfied, based on DHS’s hydraulic studies, that because it is flat and open land it does not cause an obstruction, we will say okay,” Marin said.

“If we determine the fence does cause an obstruction, then we basically tell Homeland Security they cannot do it under the 1970 treaty. If they supersede us, that’s a different thing.”

Asked what would happen if DHS ignored IBWC’s recommendations, Marin said: “If they go ahead we send it to Mexico. I can tell you that if there’s any obstruction, Mexico is going to say no.”

Marin said IBWC attorneys are currently in consultation with attorneys at the State Department, the Department of Interior, the Justice Department, and DHS to determine if IBWC is bound by the recent waiver Chertoff announced for the border fence.

Under the waiver, DHS will circumvent 36 laws and regulations, many of them designed to protect or lessen any damage to the environment.

At the Citizen’s Forum, Wayne Bartholomew, executive director of the Frontera Audubon Society praised IBWC for its record in honoring its obligations under the National Environmental Policy Act. Under NEPA, federal agencies have to integrate environmental values into their decision making process. “You have done a good job so I hope you continue,” Bartholomew told Marin.

In his interview with the Guardian, Marin said Chertoff’s waiver could supersede any law. “I’m afraid any law could mean ours too. That’s what we are having checked,” Marin said.

Marin was asked if IBWC would still carry out its obligations under NEPA for the Valley levee repair projects if its attorneys determine that Chertoff’s waiver did not apply to the agency. “That’s a hard question to answer right now. I think we have to find out,” Marin said. “I cannot go against the Administration.”

Marin said he was hearing conflicting legal advice. “We are trying to get everybody’s consensus as to what it (the waiver) is and how it would read. And every time they talk, they say, well, you’ve got some rights, you’ve got some rights and it (the waiver) doesn’t hold. And the next time we are told it says this and this and this. We’re just working through the issue,” he said.

Marin said he wants his agency to stay focused on its levee repair responsibilities regardless of what happens with DHS and its border fence plan. For this reason, Marin said, he would not cancel a contract IBWC and Hidalgo County had entered into to fix the levees. The contract was signed before the levee-wall idea took off.

“We will work and help out DHS but we have our responsibility for flood control and that is what we want to concentrate on. If this project with the wall does not go on, we want to make sure that everything is protected,” Marin said.

“It’s coming up to hurricane season and we want to do as much as we can. We want to do as much as possible in the critical areas.”

Marin has $1.5 million available to repair Cameron County’s levees but said that money could be stretched further if all the work is done in-house, not by outside engineers and consultants. He also intimated that there could be additional funds for the agency that he would put into the Cameron County projects.

“We will be concentrating on working on those areas to make sure that, if something happens, we have the three-foot freeboard in the critical areas. If we are missing six inches we might skip that and take care of the critical areas,” Marin said.

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