1. (a) Applicability. New Class 1 municipal solid waste landfill units and lateral expansions and other facilities identified in this part shall not be located in wetlands, unless the owner or operator can make the following demonstrations to the Director of the Division of Environmental Quality:

   1. (1) Where applicable under Section 404 of the Clean Water Act or applicable state wetlands laws, the presumption that a practicable alternative to the proposed landfill is available which does not involve wetlands is clearly rebutted;

   2. (2) The construction and operation of the unit will not:

      1. (A) Cause or contribute to violations of any applicable state water quality standard;
      2. (B) Violate any applicable toxic effluent standard or prohibition under Section 307 of the Clean Water Act;
      3. (C) Jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of a critical habitat protected under the Endangered Species Act of 1973; and
      4. (D) Violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary;

   3. (3)

      1. (A) The unit will not cause or contribute to significant degradation of wetlands.
      2. (B) The owner or operator must demonstrate the integrity of the unit and its ability to protect ecological resources by addressing the following factors:

2. (i) Erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the unit;

   1. (ii) Erosion, stability, and migration potential of dredged and fill materials used to support the unit;

      1. (iii) The volume and chemical nature of the waste managed in the unit;

         1. (iv) Impacts on fish, wildlife, and other aquatic resources and their habitat from release of the solid waste;
         2. (v) The potential effects of catastrophic release of waste to the wetland and the resulting impacts on the environment; and
         3. (vi) Any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected;
   2. (4) To the extent required under Section 404 of the Clean Water Act or applicable state wetlands laws, steps have been taken to attempt to achieve no net loss of wetlands, as defined by acreage and function, by first avoiding impacts to wetlands to the maximum extent practicable as required by subdivision (a)(1) of this section, then minimizing unavoidable impacts to the maximum extent practicable, and finally offsetting remaining unavoidable wetland impacts through all appropriate and practicable compensatory mitigation actions (e.g., restoration of existing degraded wetlands or creation of human-made wetlands); and
   3. (5) Sufficient information is available to make a reasonable determination with respect to these demonstrations.
3. (b) Class 1 effective date. New Class 1 municipal solid waste landfill units and lateral expansions shall meet all of the requirements of this section and shall demonstrate to the director that the facility is not located in a wetland, or make the demonstration required in subsection (a) of this section prior to permitting of the new unit or lateral expansion of an existing unit.

Codification Notes: The Clean Water Act, Pub. L. No. 92-500, is codified generally at 33 U.S.C. § 1251 et seq. The Endangered Species Act, Pub. L. No. 93-205, is codified generally at 16 U.S.C. § 1531 et seq. The Marine Protection, Research, and Sanctuaries Act of 1972, Pub. L. No. 92-532, is codified generally at 33 U.S.C. § 1401 et seq.