U.S. Department of Justice
Environment and Natural Resources Division
Assistant Attorney General Telephone (202) 514-2701
950 Pennsylvania Avenue, N.W. Facsimile (202) 514-0557
Washington, DC 20530
July 20, 2023
The Honorable Greg Abbott
Governor of Texas
Office of the Governor
State Insurance Building
1100 San Jacinto
Austin, TX 78701
The Honorable Angela Colmenero
Interim Attorney General of Texas
Office of the Attorney General
300 West 15th Street
Austin, TX 78701
Re: Notice of Prospective Filing of Legal Action Regarding Unlawful Activities in
Rio Grande River
Dear Governor Abbott and Attorney General Colmenero:
We write to inform you pursuant to the Justice Manual, J.M. § 1-10.100, that the United
States intends to file legal action in relation to the State of Texas’s unlawful construction of a
floating barrier in the Rio Grande River. The State of Texas’s actions violate federal law, raise
humanitarian concerns, present serious risks to public safety and the environment, and may
interfere with the federal government’s ability to carry out its official duties.
On or before July 12, 2023, and continuing to the present, Texas and its agents placed a
floating barrier in the Rio Grande River near the Camino Real International Bridge, Eagle Pass,
Texas. The floating barrier violates section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403,
which prohibits the creation of any obstruction to the navigable capacity of waters of the United
States, and further prohibits building any structure in such waters without authorization from the
United States Army Corps of Engineers (“Corps”). Accordingly, a Department of the Army
permit is required for the installation of structures or work in or affecting navigable waters of the
United States. See id.; 33 C.F.R. § 322.3(a). The floating barrier at issue here is a structure that
obstructs the navigable capacity of the Rio Grande River, which is a navigable water of the
United States within the meaning of the Rivers and Harbors Act. Texas does not have
authorization from the Corps to install the floating barrier and did not seek such authorization
before doing so.
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Texas’s unauthorized construction of the floating barrier is a prima facie violation of the
Rivers and Harbors Act. This floating barrier poses a risk to navigation, as well as public safety,
in the Rio Grande River, and it presents humanitarian concerns. Thus, we intend to seek
appropriate legal remedies, which may include seeking injunctive relief requiring the removal of
obstructions or other structures in the Rio Grande River.
As provided by the Justice Manual, we welcome the opportunity to have a discussion
between our leadership and Texas’s leadership concerning this prospective litigation. If Texas is
interested in having such a discussion, please contact Matthew Littleton at 202-514-4760 or
matthew.littleton@usdoj.gov. If we do not receive a response by 2:00 P.M. Eastern Time on
July 24, 2023, indicating your commitment to expeditiously remove the floating barrier and
related structures, the United States intends to file legal action.
Sincerely,
Todd Kim Jaime Esparza
Assistant Attorney General United States Attorney
Western District of Texas
Cc (by email):
Brent Webster, First Assistant Attorney General, State of Texas
Gardner Pate, Chief of Staff, Office of Texas Governor
Michael Connor, Assistant Secretary of the U.S. Department of the Army (Civil Works)
Lt. Gen. Scott A. Spellmon, Chief of Engineers, U.S. Army Corps of Engineers
Craig R. Schmauder, Deputy General Counsel (IECW), U.S. Department of the Army
David R. Cooper, Chief Counsel, U.S. Army Corps of Engineers