Just months after a private developer constructed a 3-mile long stretch of steel bollard fencing along the Rio Grande south of Mission, opponents of his private border wall project say the riverbank is eroding, undermining the structure’s integrity and putting the wall at risk of coming down.
However, Tommy Fisher — CEO of Fisher Sand & Gravel Co. and the man who built the wall in the hopes it would serve as a model for border wall construction methodology and placement — roundly denied the allegations, calling them “nonsense” and saying the structure has performed exactly as intended.
“That’s just complete nonsense,” Fisher said via phone Thursday. “There’s some erosion on the side slopes that will be fixed … we basically can fix that, put some rip rap and then see what we want to do next with DHS,” he said.
But some of the most vocal opponents of the project say large swaths of riverbank have been eroded away at a faster rate than the rest of the bank.
Indeed, where once was an artificially gentled slope inclined at a 5-to-1 ratio, now lies a bank with substantial scarping — vertical erosion that creates steep, shelf-like drop-offs from the top of the riverbank to the water’s surface.
“What we began to see was stunning, you know. Spectacular in the worst way,” said Marianna Treviño Wright, executive director of the National Butterfly Center, which owns property adjacent to the land where Fisher built his wall.
“We have literally thousands of photos, week after week after week documenting the deterioration of the banks and the base of the wall. It is radically undercutting the 8-foot-wide foundation on the river side,” Treviño Wright said, calling the structure a “freestanding monument to stupidity.”
Treviño Wright — who, along with the NBC via the North American Butterfly Association, are suing Fisher and his associated companies for their construction of the wall — said she has been documenting the riverbank’s erosion for months. Now she worries that erosion could destabilize the structure, toppling it and sending it downstream where it could potentially damage the Anzalduas Dam.
THE WALL BEGINS
Fisher first gained notoriety in the Rio Grande Valley late last fall when the first stages of construction of the private border fence began on land owned by Neuhaus & Sons south of Mission.
However, he’s not new to border wall construction. The North Dakota native and his company have built stretches of wall along other parts of the Southwest border, including a levee repair project for the International Boundary and Water Commission in El Paso.
The federal government also awarded him a $400 million contract to build a 31-mile stretch of wall near Yuma, Arizona.
But it was the wall project here in the Valley Fisher hoped to use as a launching pad to secure more government construction contracts. The project pioneered a new building method: freestanding galvanized steel bollards set in a T-shaped concrete pad.
He also had a new idea for where to locate the structure — right along the river’s edge, just feet from the water — rather than where the government has built existing stretches of wall sometimes as much as several miles inland.
“I think that if we can prove that we can build there, hopefully the government possibly can change course and look at it,” Fisher said in January.
Not long after Fisher crews arrived at the site, however, the NBC and Treviño Wright launched their lawsuit in state district court against Fisher and the project, claiming it would impede their private property rights and could potentially cause devastating erosion.
A week later — on Dec. 5, 2019 — the federal government launched a lawsuit of its own. The U.S. Attorney’s Office for the Southern District of Texas sued Fisher on behalf of the IBWC, claiming the project could put the United States in violation of a 1970 international boundary treaty with Mexico.
The government alleged the company had not provided sufficient data to prove the project would have no detrimental effect to the flow or path of the river, upon whose course the international boundary is defined.
Nor had the company conducted sufficient predictive modeling to show how the wall would impact the surrounding landscape in the event of a flood, the commission said.
Ultimately, The NBC’s suit was removed to federal court, where U.S. District Judge Randy Crane tied the pair of suits together, holding hearings in the two separate causes of action at the same time.
After months of running data through predictive modeling software to gauge the structure’s effect on the Rio Grande, scientists at the IBWC determined it does violate the international boundary treaty.
The government notified Fisher of its findings in an April 23 letter and spoke of them during a court hearing in early May. But even then, the government’s conclusions differed from those arrived at by Fisher’s own engineers.
For Javier Peña, the attorney representing the butterfly center in its suit, the IBWC’s findings backed up what the NBC’s own expert — engineering geomorphologist Mark Tompkins — had predicted: that the wall would cause obstructions and potentially be a hazard.
For Peña, the riverbank’s erosion only bolsters that concern.
“I couldn’t believe how drastic the erosion is and how quick it happened,” Peña said Thursday. “That looks like it’s been years of erosion,” he said, estimating that the structure would not last another year.
Peña and Treviño Wright took a boat tour of the river Thursday morning to see exactly what the riverbank looks like. “I think the people of Hidalgo County, especially those who live downstream from this project should be very concerned,” Treviño Wright said.
Aside from the cliff-like vertical erosion that’s happened along the water’s edge, there are also cracks that have formed in the soil from the base of the wall to the riverbank — what Peña termed “trenching.”
In some spots, the sandy soil has been undercut from where the wall’s concrete base meets the ground, creating gaping chasms between the pad and the ground.
“When we have another tropical storm or hurricane like Alex, this wall will fall and those bollards are going to go floating downstream — just like cars and houses did last time — only these are projectiles with pointy end caps that are gonna float right into Anzalduas Dam,” Treviño Wright said.
Fisher, meanwhile, scoffed at the idea. “I was out there last week. The wall performed very well. The road is completely intact. The footing is completely intact,” Fisher said.
Some isolated erosion has occurred since the project was completed, but, according to Fisher, that was part of the plan. “Now we know where the water runs 100% accurate, because the water don’t lie,” he said.
“And in those spots, those spots will be fixed, placed with rip rap and there’ll never be another issue,” he said.
Early on in the project, Fisher defoliated the riverbank, removed invasive carrizo cane and other vegetation, then artificially graded the bank on an incline. He then seeded the soil with grass, but did nothing else to fortify the slope.
That was intentional, in order to illustrate what path any water runoff would follow and thereby come back to fortify just those sections.
“I didn’t want to do anything until I saw it because I want to know where the water ran on every piece. And so it’s all marked so when we come back, we don’t put ditches in the wrong place,” Fisher said.
Crews will eventually return to the site to shore up those locations with rip rap, or ditches lined with stones. Any undercutting of the soil beneath the concrete pad will also be filled in, Fisher said.
“If anything erodes next to the surface, you can easily pack it in and replace the dirt right next to it,” he said.
Fisher’s plans to return to the Valley were delayed by the coronavirus pandemic. As such, it wasn’t until last week that he got his first chance to see how the wall was faring. He said he looked at every one of the 15,000 bollards that make up the 3-mile fence and was satisfied with how the wall has performed after the late spring rains.
“It’s not failing. There’s erosion that happens everywhere, okay? We can maintain whatever. We’ve seen what the biggest rains that they can bring us, okay? So, bring on even more rain,” he said.
Fisher maintains that the integrity of the structure has not been threatened.
PENDING COURT DATE
Fisher, the government and the butterfly center are due in court again next Wednesday. More than half a year after the two lawsuits were filed, a trial date has yet to be set in either case.
Wednesday’s meeting — a scheduling conference — has been postponed several times, Peña said. The delays have meant the parties have been unable to formally start the discovery process, during which data and evidence must be shared.
In May, Crane ordered the government and Fisher’s attorneys to share their modeling data with the butterfly center so it can conduct its own independent analysis, but to date, that hasn’t happened, Peña said.
Getting that access to the data is of high priority to the NBC, which asserts that neither the government nor Fisher have created accurate models of the wall and its effects.
“It’s something that I think all parties involved need to have a chance to have done,” Peña said of the NBC being able to run the data itself. “We obviously can’t rely on just the builders because obviously they were wrong about everything else,” he said.
“It’s just the ultimate level of snake oil salesman, carpetbaggery and I haven’t seen it ever down here to this degree,” Peña said.
CORRECTION: This article has been updated to reflect that Tommy Fisher is a native of North Dakota and that the National Butterfly Center is a part of the North American Butterfly Association.