[EDITOR’S NOTE: This story has been updated with a quote from IBWC.]

McALLEN, Texas (Border Report) — The federal government and the builder of a controversial private border wall in South Texas have reached an agreement that will allow the wall to remain on the banks of the Rio Grande but require quarterly inspections by the company.

The settlement also calls for the destruction of sensitive information and reports produced by the federal government during the case, which has angered local environmentalists who want the public to know how vulnerable the structure could be to flooding.

Last week, federal prosecutors and border wall builders Fisher Industries, and TGR Construction Inc., settled the two-and-a-half-year-old case in which the federal government, on behalf of the International Boundary and Water Commission, had originally asked a court in McAllen to force the wall to come down alleging it violates an international water treaty with Mexico.

Tommy Fisher, CEO of Fisher Sand & Gravel Company, is seen on Jan. 15, 2020, in front of his private border wall being built south of Mission, Texas. (Border Report File Photo/Sandra Sanchez)

As part of the agreement, however, the 3.5-mile wall can remain as long as Fisher Industries and TGV Construction install a flood gate on the eastern edge of the fence to allow for the release of floodwaters, and conduct quarterly inspections. A $3 million bond also must be kept on the property for 15 years, or until it is transferred to the federal government, in case the structure falters, according to the 34-page settlement agreement filed in the U.S. District Court for the Southern District of Texas in McAllen.

Sally Spener, IBWC U.S. Secretary, told Border Report the agency welcomes the agreement.

“We are pleased a settlement has been reached and we believe it adequately addresses our concerns,” Spener said in an email.

U.S. District Judge Randy Crane has overseen the controversial case, which was first filed in November 2018 as Fisher Industries obtained private lands south of Mission, Texas, to build the walls, and used funds crowdsourced by We Build The Wall to help launch the project.

The conservative organization We Build The Wall was originally named in the lawsuit but later dropped.

Fisher Industries CEO Tommy Fisher told Border Report previously that he ended up self-financing millions of dollars for the project after We Build The Wall failed to give the $25 million that the organization raised online by private donations for border wall construction.

A settlement had been expected since the start of the year but every time a status hearing was held, parties from both sides requested further extensions, which Crane granted.

The settlement “forever discharge(s) TGR, Fisher Industries, of and from all claims or damages arising or in connection with the (wall,)” as long as the following occurs:

  • A pumphouse gate is installed.
  • The gate is to be opened within 12 hours upon notice of a flood event.
  • During a flood event, a person must be on-site to monitor the water levels every two hours.
  • If water reaches a certain level, then 10 bollards must be removed at two separate sections of the fence to help allow water to move.
  • The fence openings must remain until the water recedes.
  • Full quarterly inspections must be conducted by the company and inspection reports must be shared with IBWC within 14 days.
  • Any noted repairs must be completed within 30 days.
  • TGR and Fisher Industries must destroy all reports produced by IBWC engineers, “which contains proprietary information” not subject to publish disclosure.

But environmentalists said allowing the company that built the private border wall to self-police during a flood event is giving too much latitude. And they disagree with the destruction of engineering reports and want to know what these reports contain.

Marianna Treviño-Wright, executive director of the National Butterfly Center and Matt Crocker view the private border wall on May 17, 2021, from the Rio Grande. (Sandra Sanchez/Border Report File Photo)

“The government’s settlement with Fisher represents nothing short of criminal collusion. Furthermore, the settlement terms which call for the destruction of public records are only intended to give the government plausible deniability when the Fisher fence falls; thereby threatening Anzalduas Dam and catastrophic flooding downstream, which will result in loss of property and lives when the next big event occurs,” Marianna Treviño-Wright, executive director of the National Butterfly Center, told Border Report.

Treviño-Wright has a pending defamation lawsuit against the private border wall builders and project organizers on behalf of the North American Butterfly Association, its parent organization, that is scheduled for trial in state court in October. The National Butterfly Center is located near the private border wall on the banks of the Rio Grande and has opposed the private border wall since construction first began.

On Tuesday, the New York City trial of a member of We Build The Wall accused of fraud was declared a mistrial due to a hung jury.

Timothy Shea is the only member of the group whose case has gone to trial. Three other men have also been indicted on charges of conspiring to defraud donors who gave money to build the private border wall.

Sandra Sanchez can be reached at Ssanchez@borderreport.com