MCALLEN, RGV – Scott Nicol, co-chair of the Sierra Club’s Borderlands Team, testified Thursday before the U.S. Committee on Natural Resources’ subcommittee on oversight and investigations.

Scott Nicol

Nicol and the Borderlands Team are strongly critical of White House plans to build a Border Wall. The title of the hearing was, ‘The Costs of Denying Border Patrol Access: Our Environment and Security.’

“The Republican majority on the subcommittee wanted to pretend that adherence to environmental and other laws on federal lands like Santa Ana National Wildlife Refuge hinders the Border Patrol. I was the sole witness asked to speak in opposition to that premise,” Nicol told the Rio Grande Guardian, after he had testified.

Here below is Nicol’s oral testimony. A longer version will be entered into the official record.

February 15, 2018

Dear Chairman Westerman and Ranking Member McEachin

My name is Scott Nicol. I am the Volunteer Co-chair for the Sierra Club’s Borderlands Team and I live and teach in McAllen, one of the safest cities in the state of Texas.

My house is 12 miles north of a section of border wall; the actual border is another mile further south. The wall south of my home cuts off a World Birding Center, established to attract eco-tourism dollars to a community in one of the poorest counties in the United States, from an adjacent US Fish and Wildlife Refuge.

And like most of the rest of the 654 miles of border that already have a wall or barrier, it was built without regard for local, state, and federal laws meant to protect the environment and border communities like mine.

The authority given to DHS to selectively disregard laws it deems inconvenient when it builds walls along either the U.S.-Mexico or U.S.-Canada border should not be expanded to cover all enforcement activities on all federal lands within 100 miles of both borders, as has been proposed.

The laws that are swept aside are not merely red tape, they are critical protections that were put in place for a reason — to protect people, their communities, and the environment.

The levee-border wall that stands twelve miles south of my home is a prime example. Twenty-seven laws were waived to “expedite” it’s construction. The pre-existing levee was essentially a pile of earth with a gentle slope on either side that terrestrial animals could easily surmount. To convert it into a levee-border wall the river-facing side was carved away and replaced with an 18 foot tall vertical concrete slab.

Like many of the levee-border walls in the Rio Grande Valley this one cuts off a portion of the Lower Rio Grande Valley National Wildlife Refuge, which was intended to provide habitat for endangered ocelots, a small wildcat.

A year after the levee-wall’s completion flooding of the Rio Grande inundated farmlands and refuge tracts for 3-4 months. Where sloping levees had been converted to levee-border walls US Fish and Wildlife reported that,

“The floodwall blocked almost all egress for terrestrial wildlife species. […] Hundreds of shells of Texas Tortoise have been found demonstrating the probability of mortality for species which could not retreat from rising water levels. The Service fears any ocelots or jaguarundi that may have been caught in these areas when water began to rise may have been malnourished, injured, or perished.”[1]

Other walls have been built without regard for laws that protect people from unnecessary flooding. We’ve seen devastating floods in communities like Nogales and in protected natural areas such as Organ Pipe Cactus National Monument. When walls are built across our rivers, arroyos and flash flood zones, they catch debris, back up water as much as six feet deep, and cause massive damage.

The Native American Graves Protection and Repatriation Act was also waived when barriers were built in the Tohono O’odham Nation in Southern Arizona. Chairman Ned Norris Jr. testified that during the building of border barriers,

“…fragments of human remains were observed in the tire tracks of the heavy construction equipment.  Barriers and the border road now cross the site. Imagine a bulldozer parking in your family graveyard, turning up bones.”[2]

The expansion of waivers to cover not only the construction of walls along the border, but any Border Patrol or Customs and Border Protection activity on all federal lands within 100 miles of the U.S.-Mexico and U.S,-Canada border, would add to the unnecessary damage.

In 2011 Ron Vitiello, who is currently the Acting Deputy Commissioner of Customs and Border Protection, testified that,

“In law enforcement, we operate within the confines of the rule of law and regulations.  Would our efforts be easier without these legal frameworks?  Yes, it would.  However, we find a way to reasonably and sensibly solve problems within the parameters of law.  Does the Border Patrol face challenges with respect to operating around protected lands when they are in our enforcement zones? Yes, but again, we have been able to establish practical solutions to allow for mission success.”[3]

Laws have also been waived for patrol roads along the border. In addition to causing environmental harm, carving a road through a formerly road-less locale can make that area more accessible to drive-throughs by smugglers. This occurred in the San Bernardino National Wildlife Refuge, which stated in its 2008 Annual Report that newly installed tactical infrastructure,

“…allow[ed] vehicles loaded with marijuana to drive into the United States using the new system of all-weather roads constructed by DHS. Drive-through drug loads have subsequently increased in the San Bernardino Valley.”[4]

So the waiving of laws has proved to be environmentally destructive, and by short-circuiting the normal deliberative process it has allowed for counter-productive activities to be undertaken. It has also hurt borderlands communities.

Thank you.

Respectfully Submitted

Scott Nicol

Co-chair Sierra Club Borderlands Team

[1] Rationale and Justification for Conservation Measures Rio Grande Valley Sector.  US Fish and Wildlife Corpus Christi Ecological Services Field Office.  March 9, 2011.

[2] Norris Jr., Ned.  Written testimony of the Honorable Ned Norris Jr., Chairman Tohono O’odham Nation to the to the Subcommittee on Fisheries, Wildlife, and oceans and Subcommittee on National Parks, Forests, and Public Lands of the House Committee on Natural Resources.  Joint Oversight Hearing “Walls and Waivers: Expedited Construction of the Southern Border Wall and Collateral Impacts to Communities and the Environment.”  U.S. House of Representatives Committee on Natural Resources.  Subcommittee on National Parks, Forests and Public Lands.  Subcommittee on Fish, Wildlife and Oceans.  April 28, 2008.

[3] Vitiello, Ron.  “The Border:  Are Environmental Laws and Regulations Impeding Security and Harming the Environment?”  Joint Hearing before the Subcommittee on National Security, Homeland Defense and Foreign Operations of the Committee on Oversight and Government Reform and the Subcommittee on National Parks, Forests, and Public Lands of the Committee on Natural Resources.  April 15, 2011.

[4] San Bernardino National Wildlife Refuge, Leslie Canyon National Wildlife Refuge Annual Narrative Report Calendar Year 2008.  U.S. Department of the Interior, Fish and Wildlife Service, National Wildlife Refuge System.