[Code of Federal Regulations]
[Title 40, Volume 24]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR258.12]

[Page 401-402]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 258_CRITERIA FOR MUNICIPAL SOLID WASTE LANDFILLS--Table of Contents
 
                     Subpart B_Location Restrictions
 
Sec. 258.12  Wetlands.

    (a) New MSWLF units and lateral expansions shall not be located in 
wetlands, unless the owner or operator can make the following 
demonstrations to the Director of an approved State:
    (1) Where applicable under section 404 of the Clean Water Act or 
applicable State wetlands laws, the presumption that practicable 
alternative to the proposed landfill is available which does not involve 
wetlands is clearly rebutted;
    (2) The construction and operation of the MSWLF unit will not:
    (i) Cause or contribute to violations of any applicable State water 
quality standard,
    (ii) Violate any applicable toxic effluent standard or prohibition 
under Section 307 of the Clean Water Act,
    (iii) 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
    (iv) Violate any requirement under the Marine Protection, Research, 
and Sanctuaries Act of 1972 for the protection of a marine sanctuary;
    (3) The MSWLF unit will not cause or contribute to significant 
degradation of wetlands. The owner or operator must demonstrate the 
integrity of the MSWLF unit and its ability to protect ecological 
resources by addressing the following factors:
    (i) Erosion, stability, and migration potential of native wetland 
soils, muds and deposits used to support the MSWLF unit;
    (ii) Erosion, stability, and migration potential of dredged and fill 
materials used to support the MSWLF unit;
    (iii) The volume and chemical nature of the waste managed in the 
MSWLF unit;
    (iv) Impacts on fish, wildlife, and other aquatic resources and 
their habitat from release of the solid waste;
    (v) The potential effects of catastrophic release of waste to the 
wetland and the resulting impacts on the environment; and
    (vi) Any additional factors, as necessary, to demonstrate that 
ecological resources in the wetland are sufficiently protected.
    (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 paragraph (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 man-made wetlands); and

[[Page 402]]

    (5) Sufficient information is available to make a reasonable 
determination with respect to these demonstrations.
    (b) For purposes of this section, wetlands means those areas that 
are defined in 40 CFR 232.2(r).