January 31, 2023

A private border wall built along the Rio Grande in south Texas could collapse in extreme flooding, according to a federal-commissioned inspection report that the government tried to keep secret for more than a year.

The 404-page report, prepared by global engineering firm Arcadis, corroborates previous reports from ProPublica and The Texas Tribune. It also shows for the first time that the federal government independently identified structural problems with the border fence before reaching a settlement agreement with construction company Fisher Industries in May.

Under the agreement, which ended a nearly three-year legal battle between the International Boundary and Water Commission and Fisher Industries, the company must inspect the fence quarterly, remove bollards and maintain a gate that would allow floodwater drainage. It also has to hold a $3 million bail, a form of insurance to cover all costs should the structure fail.

Engineering and hydrology experts told the news organizations the bond was insufficient to cover the type of catastrophic failure Arcadis described and raised concerns that the federal government’s decision to settle the case goes against the report’s findings.

The company modeled various scenarios based on the extreme weather conditions caused by Hurricane Beulah, a 1967 storm that dumped about 30 inches of rain in some areas of the border region and caused the banks of the Rio Grande to overflow. Modeling showed that the fence would “effectively slide and/or tip over” during large floods and that it becomes unstable during much smaller and more frequent floods.

According to the report, the fence does not conform to basic international building codes and industry standards and has a much shallower foundation than border barriers erected by the federal government.

“Every single conclusion in the report indicates it doesn’t have to be there and shows that it is indeed negatively affecting the area,” said Adriana E. Martinez, professor and geomorphologist at Southern Illinois University Edwardsville. (She was not involved in the report.)

Martinez, who studies the effects of border barriers in South Texas, questioned how much more evidence state and federal governments need to take down the fences and prevent future construction along the Rio Grande.

Arcadis referred questions about his assessment to the Justice Department, which represented the IBWC in the lawsuit, arguing the fence violates a treaty with Mexico that requires both countries to approve any development that could affect the international border. A DOJ spokesman declined to answer specific questions about the settlement or why the government was fighting the report’s release.

News organizations received the report on Nov. 15 after multiple Freedom of Information Act requests and 15 months of back-and-forth with the federal government, which initially denied the request. The DOJ reversed course and released the report after ProPublica’s attorneys threatened legal action.

As part of the settlement, federal officials ordered Fisher Industries and its subsidiaries to destroy all copies of the Arcadis report, claiming it contained “proprietary information.”

“When you read this and see the resulting settlement, it’s like they completely ignored the Arcadis report,” said Amy Patrick, a Houston forensic civil and civil engineer and court-certified wall construction expert. “I can understand why they were so reluctant to let it out because (the report) basically completely dismantled that idea that the fence will be fine.”

Mark Courtois, an attorney for Fisher Industries, said the contractor “strongly disagreed with the opinions in the Arcadis report and refuted those opinions to the satisfaction of the IBWC.” He said the company worked with the IBWC, which is tasked with overseeing the international treaty, to “reach an amicable resolution on all matters related to the fence, including all issues raised in the Arcadis report.”

“Construction of the fence was completed nearly three years ago and we remain confident in its design and construction,” Courtois said.

Sally Spener, a spokeswoman for the IBWC, denied that Fisher was able to contradict the conclusions in the Arcadis report to the agency’s satisfaction.

In an email to news outlets, Spener said the agency accepted the report’s findings, which showed a far greater impact on the flow of the Rio Grande than the builder had claimed. Even so, she added, the requirements of the settlement agreement address the agency’s concerns that the barrier would violate the contract.

But the settlement agreement doesn’t address the report’s findings that the fence was built on a faulty design and had construction flaws that could contribute to its collapse, said Alex Mayer, a civil engineering professor at the University of Texas at El Paso.

“It just shows the sloppiness of the whole effort. It worries me even more,” Mayer said.

Fisher Industries President Tommy Fisher began building the fence in 2019 with financial support from the online fundraising campaign, We Build the Wall. The nonprofit was formed to help former President Donald Trump build his “great beautiful wall” along the border. In the end, four of the nonprofit’s leaders, including Trump’s former adviser Steve Bannon, were arrested on fraud and other allegations related to the fundraising program.

Trump pardoned Bannon in January 2021. But in September, Bannon faced state charges in New York. Bannon called the charges “nothing more than a partisan arming of the criminal justice system.”

The other three men, including Brian Kolfage, an Air Force veteran who led the organization, will be convicted in federal court Jan. 31 on various fraud and tax charges. Kolfage and another man pleaded guilty in April. The third man was sentenced in October.

Shortly after construction of the fence began, the DOJ filed a lawsuit in federal court to try to stop work, alleging that Fisher Industries was in violation of the agreement with Mexico. A state district judge in Hidalgo County granted the government an injunction to stop construction, but a federal judge later overturned it.

During a January 2020 court hearing, Fisher claimed that his bollard wall design would bring security to the actual boundary by addressing flooding and erosion concerns that had previously prevented the federal government from building near the riverfront.

The 3-mile project was completed in February 2020, making it the first riverfront boundary fence to be erected in South Texas. We Build the Wall contributed about $1.5 million of the total cost of $42 million, with the rest coming from Fisher, according to court testimony.

The areas around the private border fence soon showed signs of erosion. Six hydrologists and engineers told ProPublica and the Tribune in July 2020 that the fence’s foundation was too shallow and that a series of cracks and gullies where rainwater had washed through the sandy loam beneath the foundation raised stability concerns.

According to the organization’s news articles, Trump attempted to distance himself from the project, saying on Twitter it was engineered to make him look bad.

Fisher called the news organizations’ coverage of tech concerns during a 2020 podcast interview hosted by Bannon as “absolute nonsense.”

“I would invite any of these engineers who said it would fall over, I’ll meet them there next week. … If you don’t know what you’re talking about, you probably shouldn’t start talking,” he said. “It works incredibly well. There is a little erosion maintenance that we need to maintain.”

As climate change contributes to more extreme weather, a better understanding of the erosion that is occurring is crucial, Martinez said.

“We know that there are more extreme hurricane seasons due to climate change, so we know there’s a greater likelihood that the fence will flood in the Rio Grande,” Martinez said. “It’s only a matter of time before something happens.”

The fence outside the mission is one of two private border barriers built with private funds, but may not be the last.

Texas Gov. Greg Abbott has scrambled to build fences along the state’s 1,200-mile boundary, using a mix of state funds and private crowdsourcing dollars. And Trump said he would continue building the border wall, while announcing last month that he would run again for the country’s highest office.

Ryan Patrick, a former US attorney whose office first filed the lawsuit against Fisher, said by settling the case and requiring bail, the government is limiting the risk of losing in court. Patrick left office before the settlement was negotiated. He continues to believe the judge should not have allowed Fisher to build the fence.

The settlement does not prevent anyone from building on the flood plain in the future, he said, but it does show the government will not give potential builders unqualified authority. “You will have long-term care and custody of this thing,” he said.

Amy Patrick, who is not related to Ryan Patrick, offered a different perspective.

The structural engineer said the government’s handling of the legal case and what it sees as apparent indifference to its own engineer’s report “could set a precedent for credible engineers to be disregarded on similar projects in the future”.

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