I 113th CONGRESS 1st Session H. R. 547 IN THE HOUSE OF REPRESENTATIVES February 6, 2013 Mr. Grijalva introduced the following bill; which was referred to the Committee on Homeland Security , and in addition to the Committees on Armed Services , Agriculture , and Natural Resources , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To provide for the establishment of a border protection strategy for the international land borders of the United States, to address the ecological and environmental impacts of border security infrastructure, measures, and activities along the international land borders of the United States, and for other purposes.

1. Short title This Act may be cited as the Border Security and Responsibility Act of 2013 . 2. Purpose The purposes of this Act are to provide a means whereby Federal lands and resources along the United States-Mexico border are provided the highest protection possible from the effects of unauthorized immigration, human and drug smuggling, and border enforcement activities, while ensuring that all operations necessary to achieve border security are undertaken. 3. Findings Congress finds the following: (1) Federal lands managed by the Department of the Interior and the Department of Agriculture encompass over 40 percent of the 1,900 miles of southwestern border in Arizona, California, New Mexico, and Texas. (2) Over the last five years, the Border Patrol has nearly doubled the number of its agents on patrol, constructed hundreds of miles of border fence and vehicle barriers, and installed surveillance equipment on and near lands managed by the Department of the Interior and the Department of Agriculture along the southwestern border. (3) When operating on Federal lands, the Border Patrol has responsibilities under several Federal land management laws, including the National Environmental Policy Act of 1969, the National Historic Preservation Act of 1966, the Wilderness Act of 1964, and the Endangered Species Act of 1973. (4) In March 2006, the Department of the Interior, the Department of Homeland Security, and the Department of Agriculture entered into a Memorandum of Understanding (MOU) entitled the Cooperative National Security and Counterterrorism Efforts on Federal Lands along the United States’ Borders . This MOU contains provisions related to the development of an efficient means of communication, cooperative identification of patrol routes and operations, conduct of joint enforcement operations, cooperation in the development of environmental and cultural resources awareness training, access by United States Customs and Border Protection (CBP) agents to Federal lands along the border, and guidance on construction and maintenance of tactical infrastructure. (5) Since entering into the 2006 MOU, the three departments have continually and successfully worked together to carry out the tenets outlined in the MOU at both the departmental and field levels, and have worked to address concerns regarding coordination to continually improve efforts to secure the borders while conserving the environment. (6) A 2008 MOU between the three departments bridges communication gaps and provides radio interoperability between Border Patrol agents and their law enforcement partners in the Department of the Interior and the Department of Agriculture. (7) Since fiscal year 2006, apprehensions of undocumented immigrants along the southwestern border have declined, reaching a low of 327,577 in fiscal year 2011. This decrease has occurred along the entire border, with every sector reporting fewer apprehensions in fiscal year 2011 than in fiscal year 2006. (8) CBP partners with Federal, tribal, State, and local entities to benefit border security and protection of the environment and cultural resources on Federal lands. The mission of the Department of Homeland Security, the Department of the Interior, and the Department of Agriculture along the border are inextricably linked in protecting and strengthening United States communities. (9) A report by the Government Accountability Office found that Border Patrol agents in charge of Border Patrol stations reported that the overall security status of their jurisdictions is not affected by land management laws. Instead, factors other than access delays or restrictions, such as the remoteness and ruggedness of the terrain or dense vegetation, have had the greatest effect. 4. Definitions In this Act: (a) Indian tribe The term Indian tribe has the meaning given such term in section 4 of the Indian Self-Determination and Education Assistance Act ( 25 U.S.C. 450b ). (b) Secretary The term Secretary means the Secretary of Homeland Security. (c) Secretary concerned The term Secretary concerned means the Secretary of Agriculture with respect to land under the jurisdiction of the Secretary of Agriculture, the Secretary of the Interior with respect to land under the jurisdiction of the Secretary of the Interior, the Secretary of Defense with respect to land under the jurisdiction of the Secretary of Defense or the secretary of a military department, or the Secretary of Commerce with respect to land under the jurisdiction of the Secretary of Commerce 5. Border protection strategy (a) Border protection strategy (1) In general Not later than 180 days after the date of the enactment of this Act, the Secretary, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, and the Secretary of Commerce, in consultation with tribal, State, and local officials, shall jointly develop and submit to Congress a border protection strategy for the international land borders of the United States. (2) Elements of the strategy The strategy developed in accordance with paragraph (1) shall include the following components: (A) A comparative analysis of the levels of border security, based on auditable and verifiable data, achievable through alternative tactical infrastructure and other security measures. Measures assessed shall include, at a minimum— (i) pedestrian fencing; (ii) vehicle barriers, especially in areas in the vicinity of existing or planned roads; (iii) additional Border Patrol agents; (iv) efficacy of natural barriers and open space in response to unauthorized or unlawful border crossing; (v) fielding of advanced remote sensing and information integration technology, including the use of unmanned aerial vehicles and other advanced technologies and systems, including systems developed and employed, or under development, for tactical surveillance, multi-source information integration, and response analysis in difficult terrain and under adverse environmental conditions; (vi) regional as well as urban and rural variation in border security methodologies, and incorporation of natural barriers; (vii) enhanced cooperation with, and assistance to, intelligence, security, and law enforcement agencies in Mexico and Canada in detecting, reporting, analyzing, and successfully responding to unauthorized or unlawful border crossings from or into Mexico or Canada; and (viii) removal of obstructive non-native vegetation. (B) A comprehensive analysis of cost and other impacts of security measures assessed in subparagraph (A), including an assessment of— (i) land acquisition costs, including related litigation and other costs; (ii) construction costs, including both labor and material costs; (iii) maintenance costs over 25 years; (iv) contractor costs; (v) management and overhead costs; (vi) the impacts on soils, wildlife, wildlife habitat, natural communities, and functioning cross-border wildlife migration corridors and hydrology (including water quantity, quality, and natural hydrologic flows) on Federal, tribal, State, local, and private lands along the border; (vii) costs of fully mitigating the adverse impacts to Federal, tribal, State, local, and private lands, waters (including water quality, quantity, and hydrological flows), wildlife, and wildlife habitats, including, where such action is possible, the full costs of the replacement or restoration of severed wildlife migration corridors with protected corridors of equivalent biological functionality, as determined by each Secretary concerned, in consultation with appropriate authorities of tribal, State, and local governments and appropriate authorities of Mexico and Canada; and (viii) the impacts on the economy, culture, safety, and quality of life on residents in the vicinity of the border. (C) A comprehensive compilation of the fiscal investments in acquiring or managing Federal, tribal, state, local, and private lands and waters in the vicinity of, or ecologically related to, the land borders of the United States that have been acquired or managed in whole or in part for conservation purposes (including the creation or management of protected wildlife migration corridors) in— (i) units of the National Park System; (ii) National Forest System land; (iii) land under the jurisdiction of the Bureau of Land Management; (iv) land under the jurisdiction of the United States Fish and Wildlife Service; (v) other relevant land under the jurisdiction of the Department of the Interior or the Department of Agriculture; (vi) land under the jurisdiction of the Department of Defense or the individual military department; (vii) land under the jurisdiction of the Department of Commerce; (viii) tribal lands; (ix) State and private lands; and (x) lands within Mexico and Canada. (D) Recommendations for strategic border security management based on comparative security as detailed in subparagraph (A), the cost-benefit analysis as detailed in subparagraph (B), as well as protection of investments in public lands specified in subparagraph (C). (3) Training (A) Required training The Secretary, in cooperation with the Secretary concerned, shall provide— (i) natural resource protection training for Customs and Border Protection agents or other Federal personnel assigned to plan or oversee the construction or operation of border security tactical infrastructure or to patrol land along or in the vicinity of a land border of the United States; and (ii) cultural resource training for Customs and Border Protection agents and other Federal personnel assigned to plan or oversee the construction or operation of border security tactical infrastructure or to patrol tribal lands. (B) Additional considerations In developing and providing training under clause (i) of subparagraph (A), the Secretary shall coordinate with the Secretary concerned and the relevant tribal government to ensure that such training is appropriate to the mission of the relevant agency and is focused on achieving border security objectives while avoiding or minimizing the adverse impact on natural and cultural resources resulting from border security tactical infrastructure, operations, or other activities. 6. Actions to secure the international land borders of the United States (a) In general Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104–208; 8 U.S.C. 1103 note) is amended to read as follows: 102. Improvement of border security (a) In general The Secretary of Homeland Security shall take such actions as may be required to secure the international land borders of the United States. Such actions may be taken only in accordance with the border protection strategy developed under section 5(a) of the Border Security and Responsibility Act of 2013. (b) Priority of methods In carrying out the requirements of subsection (a), the Secretary of Homeland Security shall, where practicable, give first priority to the use of remote cameras, sensors, removal of non-native vegetation, incorporation of natural barriers, additional manpower, unmanned aerial vehicles, or other low impact border enforcement techniques. (c) Consultation (1) In general In carrying out this section, the Secretary of Homeland Security shall consult with the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, the Secretary of Commerce, States, local governments, tribal governments, and private property owners in the United States to minimize the impact on the environment, culture, commerce, safety, and quality of life for the communities and residents located near the sites at which actions under subsection (a) are proposed to be taken. (2) Rule of construction Nothing in this subsection may be construed to— (A) create or negate any right of action for a State, local government, tribal government, or other person or entity affected by this subsection; (B) affect the eminent domain laws of the United States or of any State; or (C) waive the application of any other applicable Federal, State, local, or tribal law. (3) Limitation on requirements Notwithstanding subsection (a), nothing in this section shall require the Secretary of Homeland Security to install fencing, physical barriers, roads, lighting, cameras, or sensors in a particular location along an international border of the United States if the Secretary determines that the use or placement of such resources is not the most effective and appropriate means to secure the international border at such location, or if the Secretary determines that the direct and indirect costs of or the impacts on the environment, culture, commerce, safety, or quality of life for the communities and residents along the border likely to result from the use or placement of such resources outweigh the benefits of such use or placement. . (b) Preconditions In fulfilling the requirements of section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as amended by subsection (a) of this section, the Secretary of Homeland Security shall not commence any construction of fencing, physical barriers, roads, lighting, cameras, sensors, or other tactical infrastructure along or in the vicinity of an international land border of the United States, or award or expend funds pursuant to any contract or other agreement related thereto, prior to 90 days following the submission to Congress of the border protection strategy required under section 5(a) of this Act. 7. Borderlands monitoring and mitigation (a) In general The Secretary, in consultation with the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Defense, the Secretary of Commerce, and the heads of appropriate State and tribal wildlife agencies and entities, shall develop and implement a comprehensive monitoring and mitigation plan to address the ecological and environmental impacts of border security infrastructure, measures, and activities along the international land borders of the United States. (b) Requirements The mitigation plan required under subsection (a) shall include, at a minimum, measures to address and mitigate the full range of ecological and environmental impacts of border security infrastructure, measures, and activities, including— (1) preserving, maintaining, and, if necessary, restoring wildlife migration corridors, key habitats, and the ecologically functional connectivity between and among key habitats sufficient to ensure that species (whether or not designated as rare, protected, or of concern) remain viable and are able to adapt to the impacts of climate change; (2) addressing control of invasive species and implementing measures necessary to avoid the spread of such species; (3) maintaining hydrological functionality, including water quantity and quality; (4) incorporating adaptive management, including detailed provisions for long-term monitoring of the mitigation plan’s effectiveness and for necessary adjustments to such plan based on such monitoring results; and (5) protection of cultural and historical resources. (c) Preemption (1) In general Notwithstanding any other provision of law, the Secretary may, subject to paragraph (2), carry out the mitigation plan required under subsection (a) on any Federal, State, local, tribal, or private lands in the vicinity of or ecologically related to an international land border of the United States regardless of which individual, agency, or entity has ownership of or principal responsibility for the management of any such lands. (2) Conditions Activities carried out pursuant to paragraph (1) in connection with the mitigation plan shall be carried out in full consultation with, and with the concurrence of, the owner of, or entity with principal responsibility for, the management of the lands described in such paragraph. (d) Administration (1) Authorization The Secretary of Homeland Security may transfer funds of the Department of Homeland Security to other Federal agencies for— (A) expenditure under programs (including any international programs) of such agencies that are designed to fund conservation related activities (directly or through grants or similar mechanisms) on non-Federal lands, including land acquisition programs; and (B) mitigation activities on Federal lands managed by such agencies, if such activities are required to implement the mitigation plan required under subsection (a) and if the costs of such activities are higher than the costs associated with managing such lands in the absence of such activities. (2) Exemption from reprogramming requirements Funds transferred pursuant to the authorization under paragraph (1) shall not be subject to reprogramming requirements. (3) Acceptance and use of donations The Secretary may accept and use donations for the purpose of developing and implementing the mitigation plan required under subsection (a), and may transfer such funds to any other Federal agency for expenditure under such plan pursuant to paragraph (1). (e) Authorization of appropriations Notwithstanding any other provision of law, funds appropriated to the Department of Homeland Security for border security infrastructure and activities may be used by the Secretary to develop and implement the mitigation plan required under subsection (a).