Tuesday, Sept. 5, 2006 | Nearly five years ago on that fateful Tuesday morning, a plume of dark grey smoke drifted above the New York skyline within sight of the Lady of Liberty. Moments later the great Twin Towers crashed into an inferno of fire and ash.

The images caught on camera remain – imperishable. A man and a woman holding hands as they fall from the sky like rag dolls. Three soot-covered firemen raising the American flag with all the heart-rending chill of the U.S. marines at Iwo Jima. A cross miraculously formed from two toppled steel beams standing amid canyons of rubble.

When the terrorists struck, a grieving nation rallied behind its president in an extraordinary show of national unity and resolve. It was the highpoint of Bush’s presidency. But that time, hallowed in our memories, has passed, now fractured along sharply partisan lines about how best to combat terrorism and protect our homeland.

San Diego, with its military-defense infrastructure, proximity to the border and large Latino immigrant population, is at the epicenter of this partisan divide. And no where is this more apparent than the controversy over the Border Patrol’s 3.5-mile stretch of triple fence over an impenetrable topography of mesas and gullies adjacent to the internationally recognized Tijuana Estuary.

Here, the issues of border security, immigration reform, environmental protections and constitutional safeguards have all collided, promising to transform a state park once dedicated to border friendship into a walled fortress – the Maginot Line of the post 9-11 era.

The present fence – a makeshift barrier of Vietnam War metal landing mats – is certainly vulnerable. At Goat Canyon, sections of the fence are no higher than four feet because of sediment run-off from the steep terrain. Highway 1D on the Mexican side runs right by, making it easy for illegals to slide down one of the open drain lines and hop over the fence at night. The large box culvert at Smuggler’s Gulch, a major drug corridor in the early 1990s, is another access point.

“It’s wide open out here. We need more access, more cameras, more agents,” a border agent wearing a wide-brim cowboy hat tells me.

Homeland Security wants to fortify the border here by cutting into the mesa tops and filling in the alternating gullies with dirt in order to build a 48 foot-wide DG (decomposed granite), all-weather proof patrol road. A second 20 foot-high fence of unclimbable steel mesh and angled at the top will be built parallel to the road on the north side. A third 10 foot-high chain link fence will be built twenty feet north of the second fence.

Stadium lights, motion detectors, and infrared video cameras will guard strategic points.

The triple border fence is a massive earth-moving project. Driving the dirt roads and walking the switchbacks down Yogurt Canyon, up Bunker Hill with its World War II bunkers, into Goat Canyon and up Spooner’s Mesa reveals the enormity of the project. On top of Spooner’s Mesa I peer down the precipitous 310-foot drop into Smuggler’s Gulch.

The gulch spans nearly a half-mile to the next mesa, its barren slopes eroded and gouged so severely from sediment run-off that the Border Patrol’s ill-designed first fence now lies buried in the gulch. To fill the gulch for a road with a ten-percent vertical grade, the Army Corps of Engineers and its contractors will have to dump an estimated 2.3 million cubic yards of dirt – dirt cut from the already steep mesa slopes. Projected cost to complete this 3.5 mile stretch of fence is around $65 million – an under-estimate, assuming Homeland Security invests money for proper maintenance, stabilizing the cut slopes, and controlling water inflow.

Numerous environmental, human rights, and archaeological organizations as well as two federal agencies and state and local governments have criticized the triple fence, as proposed, along the Tijuana Estuary.

Their arguments are well known. Sediment from the cut slopes will bury this internationally acclaimed 2,500-acre salt-marsh, one of only 22 in the United States, in a sea of sediment that will destroy complex habitats and endanger many migrating and native bird species.

“We cannot escape the grim specter of a pending massive rampart that threatens to undo years of costly effort to restore and safeguard this natural treasure,” says Peter Douglas of the California Coastal Commission. “If built as planned, this wall of division will be a lasting memorial to the politics of fear.”

In 2004, the California Coastal Commission refused to grant permits to construct the last 3.5 miles of the 14-mile long fence, saying that it would damage, if not destroy, sensitive habitats at the estuary.

Other critics question whether spending millions of dollars on one three mile section of a 2,000-mile border is a wise investment of national-security dollars. They argue that the fence simply diverts illegal traffic, forcing people to cross the border at more remote and dangerous places. While border apprehensions in San Diego County have plummeted, they have shot up elsewhere, such as Arizona – as has the number of migrant deaths.

Passage of the Real ID Act in May 2005 silenced debate over building this stretch of the triple fence. Section 102 of this law grants the Secretary of Homeland Security the unprecedented power to arbitrarily waive “all legal requirements” that hinder or obstruct the “expeditious construction of all barriers and roads” at the nation’s borders.

It arms Secretary Michael Chertoff with a blanket waiver. This means all laws – not just environmental laws but those applying to public health and safety – and all border-security construction projects.

Court challenges are narrowly defined – limited to challenging a Homeland Security project on the grounds that it allegedly violates the U.S. Constitution.

In September, Chertoff waived the 3.5-mile triple fence from legal compliance. A coalition of environmental organizations, led by the Sierra Club, filed suit, but U.S. District Judge Larry Burns in December ruled that Congress had delegated such power to Chertoff.

These are dangerous times, and this is a dangerous law. No man, no agency should stand above the laws of this land even in a time of war! Our nation is a republic, founded on a constitutional framework of federalism; that is, a system of checks and balances to prevent the use of arbitrary power by the president, the Congress, the courts, the states or the people.

The question is no longer whether the fence and road will be built – that is a foregone reality – but how they will be designed and built. Building a roadway across such a steep, already severely eroded topography, especially at Smuggler’s Gulch, requires using measures that will mitigate sediment runoff and control for rising water levels. And even then the patrol road and its access routes that will switchback down the fill slopes are at risk, given the history of the Tijuana River Estuary.

Take Smuggler’s Gulch. Cutting into the mesa slopes at a 2-to-1 angle (2 feet down and 1 foot out) and replanting them with native vegetation to mitigate erosion is improbable, as environmental organizations have repeatedly warned. The vegetation is primarily coastal sage and succulent. Hydro-seeding will not work. Furthermore the area has one of the driest climates in the county; thus, hand planting native topsoil seeds will require pumped water during the growing season. Homeland Security’s EIR (Environmental Impact Report) ignores any discussion of long-term maintenance of the cut slopes.

Building a patrol road on an embankment of fill several hundred feet high creates a new problem of controlling for rising water levels downstream. If the water level rises above the concrete armoring at the embankment’s base, it will undercut into the fill and wash segments of it away. To prevent this, Homeland Security plans to build two 10′ x 10′ culverts.

What the EIR does not address is what Homeland Security plans to do if these culverts should clog with debris. This is quite possible because the gulch during the winter can become a raging torrent of water carrying everything downstream including abandoned cars. In addition, rising water levels could cause a backwater flow on the Mexican side that would flood nearby residences. Homeland Security needs to explain how it will keep at least one culvert open and how it will remove debris expeditiously.

A third issue is that sediment from the filled-in gulch may clog up piping that carries polluted Tijuana River water into a nearby waste treatment facility on the U.S. side of the border. If this happens, raw sewerage from Tijuana will spill into the estuary and ocean, endangering the health of swimmers and other visitors.

Sewerage from Tijuana is already a problem that the triple fence will only compound.

A final and perhaps most sensitive issue is the project’s impact on the estuary. Homeland Security has no plan to contain the sediment run-off that will surely flow into the estuary. It has told the California Coastal Commission that it will not build sediment catch basins. What will be lost is a priceless coastal estuary, one of the few salt marshes remaining in Southern California.

Why is this happening? Will it make us safer from the threat of terrorism? A triple fence by itself will not seal our borders or ensure our protection. Since 9-11 at least 16 tunnels have been discovered along the California-Mexican border, including a sophisticated 2,400-foot long tunnel with concrete flooring, lighting, ventilation and drainage system that went underneath the new triple fence at Otay Mesa. All of this reminds me of the ill-conceived Maginot Line that lulled the French into a false sense of security before the German blitzkrieg. If terrorists strike our homeland again, it will come where and when we least expect it.

Protecting our nation’s security is multi-faceted. It requires cooperation with our allies, including Mexico; immigration reform in the way of a controlled guest-worker program; effective intelligence gathering and disaster preparedness programs; and perhaps most importantly a vigilant, informed citizenry. It does not require a government to operate outside the constraints of the law, to appeal to our fears, for we are not the descendants of fearful men and women.

Victor A. Walsh is a San Diego-based freelance writer. Please contact him directly with your thoughts, ideas, personal stories or tips at vicwalsh@earthlink.net. Or send a letter to the editor.

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