SECTION 330.553. Wetlands

(a) Municipal solid waste storage or processing facilities shall not be located in wetlands unless the owner or operator makes each of the demonstrations identified in subsection (b)(1) - (5) of this section.

(b) New municipal solid waste landfill units, lateral expansions, and material recovery operations from a landfill shall not be located in wetlands, unless the owner or operator makes each of the demonstrations identified in paragraphs (1) - (5) of this subsection to the executive director. The owner or operator shall submit the demonstrations with a permit application, a permit major amendment application, or a registration application, as appropriate. The demonstration shall become part of the operating record once approved.

(1) Where applicable under Clean Water Act, §404 or applicable state wetlands laws, the presumption that a practicable alternative to the proposed landfill or recovery operation is available that does not involve wetlands shall be clearly rebutted.

(2) The construction and operation of the municipal solid waste landfill unit or recovery operation shall not:

(A) cause or contribute to violations of any applicable state water quality standard;

(B) violate any applicable toxic effluent standard or prohibition under the Clean Water Act, §307;

(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

(D) violate any requirement under the Marine Protection, Research, and Sanctuaries Act of 1972 for the protection of a marine sanctuary.

(3) The municipal solid waste landfill unit or recovery operation shall not cause or contribute to significant degradation of wetlands. The owner/operator shall demonstrate the integrity of the landfill unit and its ability to protect ecological resources by addressing the following factors:

(A) erosion, stability, and migration potential of native wetland soils, muds, and deposits used to support the landfill unit;

(B) erosion, stability, and migration potential of dredged and fill materials used to support the landfill unit;

(C) the volume and chemical nature of the waste managed in the landfill unit;

(D) impacts on fish, wildlife, and other aquatic resources and their habitat from release of the solid waste;

(E) the potential effects of catastrophic release of waste to the wetland and the resulting impacts on the environment; and

(F) any additional factors, as necessary, to demonstrate that ecological resources in the wetland are sufficiently protected.

(4) To the extent required under Clean Water Act, §404 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 (1) of this subsection, 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).

(5) Sufficient information shall be made available to the executive director to make a reasonable determination with respect to these demonstrations.

Source Note: The provisions of this §330.553 adopted to be effective March 27, 2006, 31 TexReg 2502