(a) A State with a program approved under this part may voluntarily transfer program responsibilities required by Federal law to the Secretary by taking the following actions, or in such other manner as may be agreed upon with the Administrator.

(1) The State shall give the Administrator and the Secretary no less than 180 days' notice of the proposed transfer. With the notice, the State shall submit a plan for the orderly transfer of all relevant program information not in the possession of the Secretary (such as permits, permit files, reports, permit applications, as well as files regarding ongoing investigations, compliance orders, and enforcement actions) which are necessary for the Secretary to administer the program. The notice shall include the proposed transfer date.

(2) Within 60 days of receiving the notice and transfer plan, the Administrator and the Secretary shall evaluate the State's transfer plan and shall identify for the State any additional information needed by the Federal government for program administration.

(3) At least 30 days before the transfer is to occur the Administrator shall publish notice of transfer in the Federal Register and in a sufficient number of the largest newspapers in the State to provide statewide coverage, and shall mail notice to all permit holders, permit applicants, other regulated persons and other interested persons on appropriate EPA, Corps and State mailing lists.

(b) The Administrator may withdraw program approval when a State program no longer complies with the requirements of this part, and the State fails to take corrective action. Such circumstances include the following:

(1) When the State's legal authority no longer meets the requirements of this part, including:

(i) Failure of the State to promulgate or enact new authorities when necessary; or

(ii) Action by a State legislature or court striking down or limiting State authorities.

(2) When the operation of the State program fails to comply with the requirements of this part, including:

(i) Failure to exercise control over activities required to be regulated under this part, including failure to issue permits;

(ii) Issuance of permits which do not conform to the requirements of this part; or

(iii) Failure to comply with the public participation requirements of this part.

(3) When the State's enforcement program fails to comply with the requirements of this part, including:

(i) Failure to act on violations of permits or other program requirements;

(ii) Failure to seek adequate enforcement penalties or to collect administrative fines when imposed, or to implement alternative enforcement methods approved by the Administrator; or

(iii) Failure to inspect and monitor activities subject to regulation.

(4) When the State program fails to comply with the terms of the Memorandum of Agreement required under § 233.13.

(c) The following procedures apply when the Administrator orders the commencement of proceedings to determine whether to withdraw approval of a State program:

(1) Notice to State. If the Regional Administrator has cause to believe that a State is not administering or enforcing its assumed program in compliance with the requirements of the CWA and this part, the Regional Administrator shall inform the Director in writing of the specific areas of alleged noncompliance. If the State demonstrates to the Regional Administrator within 30 days of such notification that the State program is in compliance, the Regional Administrator shall take no further action toward withdrawal, and shall so notify the State in writing.

(2) Public hearing. If the State has not demonstrated its compliance to the satisfaction of the Regional Administrator within 30 days of notification, the Regional Administrator shall inform the Director of that finding. The Administrator shall then schedule a public hearing to solicit comments on the administration of the State program and its compliance with the Act and this part. Notice of such public hearing shall be published in the Federal Register, on EPA's website, and in enough of the largest newspapers and/or news websites in the State to attract statewide attention and mailed or emailed to persons on appropriate Tribal, State, and EPA mailing lists. This hearing shall be convened not less than 30 days or more than 60 days following the date of publication of the notice of the hearing in the Federal Register. Notice of the hearing shall identify the Administrator's concerns. All interested parties shall be given opportunity to make written or oral presentations on the State's program at the public hearing.

(3) Notice to State of findings. If the Administrator finds, after the public hearing, that the State is not in compliance, within 90 days of the public hearing the Administrator shall notify the State via letter of the specific deficiencies in the State program, including administration and enforcement, and of necessary remedial actions. Within 90 days of receipt of the above letter, the State shall either carry out the required remedial action(s) or the Administrator shall withdraw program approval. If the State performs all required remedial action(s) in the allotted time or, if the Administrator determines as a result of the hearing that the State is in compliance, the Administrator shall so notify the State in writing and conclude the withdrawal proceedings. If the Administrator makes the determination that the assumed program should be withdrawn, then such determination will be published in the Federal Register, and the Administrator shall remove from the CFR, as appropriate, any provision addressing that State's assumed program. The effective date of the withdrawal, and the date upon which the Corps shall be the permitting authority, shall be 30 days after publication of the Administrator's decision in the Federal Register.

(4) Determination to withdraw. The Administrator's determination to withdraw program approval shall constitute final Agency action within the meaning of 5 U.S.C. 704.

(d) Withdrawal of authorization under this section and the Act does not relieve any person from complying with the requirements of State law, nor does it affect the validity of actions taken by the State prior to withdrawal.

[53 FR 20776, June 1, 1988, as amended at 57 FR 5346, Feb. 13, 1992; 89 FR 103507, Dec. 18, 2024]