A federal judge has refused to dismiss a lawsuit which alleges West Virginia regulators do not study potential damage to streams before they issue mining permits.

On May 1st, U.S. District Judge Robert C. Chambers turned down a request from the state Division of Environmental Protection (DEP) to dismiss the suit.

Chambers said that citizen groups have the right to challenge a pattern of permitting by DEP in federal court. DEP lawyers argued that the groups should appeal each permit to the state Surface Mine Board before going to federal court.

"These citizens contend that [DEP] is engaged in a pattern and practice of violative conduct, affecting numerous permits and state waterways," Chambers wrote in a 32-page opinion. "Pursuing these allegations in the administrative review of each permit decision would be an insurmountable obstacle to access to a federal judicial forum," the judge wrote.

The suit focuses on cumulative hydrologic impact assessments, or CHIAs. Under federal and state mining laws, DEP must conduct a CHIA before issuing any new surface mining permit in the state.

DEP is not supposed to approve any permits unless, "based on an assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic balance, the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area," according to the law.

In January, lawyers for the Ohio Valley Environmental Coalition and the Hominy Creek Watershed Preservation Association sued, alleging that DEP does not follow the CHIA law. The suit, filed in federal court in Huntington, lists 23 permits that the groups say DEP approved without proper CHIAs.

The suit specifically attacks permit applications to mine within the Island Creek watershed in Logan County and along Hominy Creek of the Gauley River, near the Fayette- Greenbrier county line. DEP lawyers Ben Bailey and Brian Glasser had argued that the case should be dismissed. Among other things, they argued that the citizen groups did not have standing to sue DEP, that the suit was barred by the state’s immu- nity to lawsuits, and that the case was not ripe for a decision.

Chambers rejected all but one of the dismissal motion arguments, but did not rule on it. He cited previous rulings by Chief U.S. District Judge Charles H. Haden II to allow a citizen suit over mountaintop removal coal mining to continue, despite various jurisdictional arguments raised by DEP.

In his ruling, Chambers criticized DEP for drawing up a CHIA policy without giving citizens input in the process.