WASHINGTON — Mexico complained for weeks to U.S. officials about Texas’ construction of a floating barrier in the Rio Grande — long before the Justice Department asked a court to step in.
By the time the U.S. Army Corps of Engineers, which has jurisdiction over the river, found out about the barrier — from news reports — Texas had already sunk anchors and strung at least 450 feet worth of wrecking ball-sized buoys.
And the state may put nets around the buoys, a prospect that has alarmed migrant advocates already appalled at the injuries caused by the razor wire Texas installed.
Those are among the revelations in affidavits filed Wednesday as part of the Justice Department’s effort to force Gov. Greg Abbott to remove the barrier.
The Biden administration has yet to explain why it didn’t try to block Texas’ moves sooner.
The Justice Department asked a federal court Monday to block further barrier construction and order removal of the buoys already in place.
The government has not sought removal of the 60 miles of razor wire Texas has installed along the river as part of Abbott’s 2-year-old border security initiative dubbed Operation Lone Star.
Migrants have become entangled in and bloodied by the razor, prompting a state trooper to raise an alarm with supervisors.
Mexican and U.S. officials have called the tactics “inhumane” and “barbaric.”
But the barrier has raised particular legal and foreign policy implications, because the Rio Grande is an international border, covered both by treaties and federal law on the use of navigable waterways.
Federal homeland security officials say the state’s barriers impede their ability to capture migrants or help those in distress.
According to an affidavit from Jason Owens, Border Patrol chief for the Eagle Pass sector, which covers 39 miles of river, 89 people have drowned in the sector in the last five years.
The Border Patrol has made 249 water rescues in that time, he told the court, often under hazardous conditions, and “any obstructions in the water could naturally impair the freedom of movement and potentially delay response times.”
Texas did give a heads-up to the International Boundary and Water Commission a month before the Corps of Engineers caught wind of the buoys.
Representatives from DPS met on June 12 with representatives of the commission, a bilateral agency that includes representatives from both countries.
DPS told them the installation would take place July 7-10. The area near Eagle Pass was a “test site.” Three buoy systems were planned, each about 1,000 feet long, consisting of 4-foot-diameter barriers.
“DPS stated that there will be no netting under the buoys initially, but netting may be considered in the future,” according to an affidavit from Mario Gomez, operations manager for the boundary commission sector that includes Eagle Pass.
It’s unclear if or when commission officials alerted any U.S. agency, or when the information reached the White House.
Under a 1970 treaty, before any project is built in the Rio Grande floodplain, detailed hydraulic modeling must be submitted. The commission must sign off after assessing any impact on flooding.
Mexico began protesting in late June.
And the buoy installation threatens to become a “major irritant” to a key ally and trading partner, according to Hillary Quam, acting director of the Office of Mexican Affairs at the U.S. State Department and U.S.-Mexico border coordinator.
“If the barrier is not removed expeditiously, its presence will have an adverse impact on U.S. foreign policy,” she wrote in her affidavit. “Mexico is concerned that individuals swimming in the river may get caught in the floating barrier,” and a drowning “could quickly rise to a significant international incident.”
Mexican officials also say the barrier diverts the natural flow and will worsen flooding on their side.
“Mexico has raised its concerns at the highest diplomatic levels,” she wrote.
The Justice Department contends that Texas violated the Rivers and Harbors Act of 1899, which forbids unauthorized construction in navigable waterways.
Abbott has boasted openly that the state had not and would not seek federal permission for the barrier. On Fox News on Monday night, he shrugged off the Rivers and Harbors Act as an “obscure law” and said the federal litigation was legally baseless.
At the Corps of Engineers district office in Fort Worth, officials responsible for waterways throughout Texas and nearby states caught wind of the barrier on July 10 from news reports.
“I checked our records and could find no application from any entity of the State of Texas or a representative of the State for a floating barrier in the Rio Grande in the vicinity of Eagle Pass,” Joseph Shelnutt, regulatory project manager at the Corps of Engineers, wrote in his affidavit.
Three days after hearing about the buoys, he and a colleague went to the border to investigate. In Shelnutt’s telling, they had to find the barrier on their own, 2 1/2 miles downriver from an equipment staging area that was heavily guarded by state police.
They saw an excavator in the river and about 450 feet of buoys, he wrote.
The barrier has more than doubled since then.
The “placement and tandem configuration” poses a threat of boat collisions, he wrote. And it prevents cross-river navigation, which is pretty much the point.
Shelnutt also warned of a great hazard if the barrier were to become unmoored. Without a permit application showing details of the design and materials, “it is unknown if the structure meets engineering standards to withstand predicted high flows.”
“We were unable to determine, among other things, the exact methods of construction and whether the floating barrier was sufficiently anchored to ensure it remained in place,” he wrote.
