How the Biden Administration Could Use Endangered Mexican Mussels to Shut Down Floating Border Wall

'Critical habitat' designation would protect mussels found in Rio Grande from environmental 'threats'

Immigrants cross the Rio Grande / Reuters
July 28, 2023

President Joe Biden is working to declare a Mexican mussel species that resides in the Rio Grande endangered, a move that could help the administration remove the water barriers Texas governor Greg Abbott (R.) placed in the river to combat illegal immigration.

Biden's Fish and Wildlife Service on Monday proposed a rule to make the Mexican fawnsfoot mussel endangered. The move would make large portions of the Rio Grande—including those in Eagle Pass, where Abbott placed buoys to deter illegal immigrants from crossing the border—a "critical habitat." While Biden is suing to remove those buoys, the critical habitat declaration could help the Democrat do away with them through environmental means if the lawsuit is unsuccessful. Such a declaration would protect the mussels from "threats," including "barriers to fish movement" and "movement of fine sediments," two issues the buoys likely pose.

Biden’s endangered species proposal came just four days after the Democrat’s Department of Justice threatened to sue Abbott over the floating barriers, a threat that did not deter the Republican, who refused to remove them. The Biden administration's suit cites the Rivers and Harbors Act, which it says makes the buoys subject to federal approval. The administration has also argued that the buoys "present serious risks to ... the environment."

Leon Kolankiewicz, scientific director of immigration group NumbersUSA, subsequently questioned the "timing of this invocation of the Endangered Species Act." He noted that environmentalists have long used habitat destruction arguments to oppose U.S. efforts to defend the southern border from illegal immigration.

When former president George W. Bush announced the construction of border fencing in 2008, for example, the Sierra Club said it would lead to "the destruction of the borderlands region." In the early days of the Trump administration, meanwhile, the Center for Biological Diversity claimed the administration’s proposed border wall threatened 93 endangered species. In late June, the same organization called for the removal of land barriers along the border in Arizona, citing similar concerns.

The Fish and Wildlife Service did not answer questions on whether the buoys would need to be dismantled should the endangered mussel proposal go through. But there’s good reason to believe the buoys would cause "threats" to fish movement and river sediments. The buoys, which float in the middle of the river, have underwater nets attached to them, which could restrict fish from swimming through. They are also anchored to the bottom of the riverbed, meaning they could dredge up sediment during construction, maintenance, or movement.

Eagle Pass has seen the second-highest number of illegal crossings in the country this year. While Abbott’s floating barrier spans about 1,000 feet, the Republican has teased the possibility of placing "mile after mile after mile of these buoys" in the Rio Grande. The habitat of the Mexican fawnsfoot outlined in the Biden administration’s proposed rule begins about six miles upstream of Eagle Pass and continues for over 185 miles downstream.

The Fish and Wildlife Service’s proposal is in the public comment stage until September 25, after which the agency will publish a final rule. Abbott has pledged to "aggressively defend" his buoys in court.

Should Biden's lawsuit fail, leaving Abbott's buoys in place, a finalized endangered mussel rule would likely give the administration new life in its bid to remove the water barriers. A new administration could revoke the rule, but it would need to go through the official regulatory process, which includes proposing a revocation, giving the public ample time to comment, and finalizing a new rule. Alternatively, a new president could revoke the designation immediately—but only with the approval of both houses of Congress.

"Texas will see the Biden Administration in court to aggressively defend our sovereign authority to secure the border," Abbott said. "Biden's open border policies created this humanitarian disaster."