DHS waives New Mexico water laws to speed border barrier work in El Paso Sector

The Department of Homeland Security has set aside federal and New Mexico legal requirements so construction crews can build more border barriers and roads along the state’s boundary with Mexico. The waiver took effect Oct. 2, 2026, the day it was published in the Federal Register.

Homeland Security Secretary Markwayne Mullin signed the determination. It covers a project area in the U.S. Border Patrol’s El Paso Sector. According to the notice, the area begins at Border Monument 71, runs east to Border Monument 53, turns north to Border Monument 40 and then runs east to Border Monument 1. The notice uses those survey markers to define the area and gives no mileage.

What the waiver covers

The document waives in full the laws and legal requirements related to four measures, according to the Federal Register text:

• Section 208 of Public Law 82-495, a 1952 statute codified at 43 U.S.C. 666;
• the New Mexico Water Code;
• Title 19, Chapter 27, Part 1 of the New Mexico Administrative Code;
• Title 19, Chapter 27, Part 4 of the New Mexico Administrative Code.

Most of these provisions govern water use, and the notice applies the waiver to well work. Covered activities include the “designing, drilling, constructing, operating, maintaining, repairing, and plugging of wells,” according to the GPO edition of the notice. The waiver also extends to site access, staging, earthwork and the installation of barriers, roads, lighting, cameras and sensors.

The notice states that it does not revoke any earlier waiver issued under the same authority, and the secretary keeps the option to issue more.

The department’s rationale

DHS describes the El Paso Sector as an area of high illegal entry. The notice states that “there is presently an acute and immediate need to construct additional physical barriers and roads” in the project area to prevent unlawful entries.

In support, the department cites Border Patrol data. Between fiscal year 2021 and Aug. 30, 2026, agents in the sector apprehended more than 1,248,000 people who tried to enter between ports of entry, the notice says. Over the same period, Border Patrol seized more than 1,580 pounds of marijuana, 2,890 pounds of cocaine, 3,450 pounds of methamphetamine, 40 pounds of heroin and 285 pounds of fentanyl in the sector.

The legal authority

The waiver relies on Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The notice notes that Congress amended that section through the REAL ID Act of 2005, the Secure Fence Act of 2006 and the DHS Appropriations Act, 2008. Under that authority, the secretary determined that waiving the listed laws was necessary so barriers and roads in the project area could be built quickly, the notice says.

Because the waiver sets aside the New Mexico Water Code and the listed state rules in full, those requirements do not apply to construction-related well work in the project area. The notice does not say whether state officials were consulted.

Broader construction push

Later in October, after the New Mexico notice was published, DHS released preliminary fiscal year 2026 border figures. The department said 250 miles of new border barrier had been completed since Jan. 20, 2025, according to a report by the Indian news agency IANS. The same report said DHS put fiscal 2026 Southwest border apprehensions at 98,708 and described the figures as preliminary.

The Federal Register notice does not give a construction schedule, a cost estimate or the number of miles planned for the New Mexico project area.