Federal law requires state regulators to figure out how mountaintop removal coal mines will affect streams before they issue permits for those mines.
The state Division of Environmental Protection is supposed to use that information to make coal operators limit damage to state waters.
A coalition of environmental groups says DEP isn't doing this job, and has threatened to file a lawsuit if the agency doesn't start.
Last week, the Ohio Valley Environmental Coalition and the West Virginia Highlands Conservancy sent DEP Director Michael Miano a formal notice of intent to sue under the 1977 Surface Mining Control and Reclamation Act.
The notice gives DEP 60 days to show that it isn't violating the law, or to stop any violations, or the agency could face a federal court lawsuit from OVEC and the Conservancy.
The notice, filed Thursday, follows a federal court lawsuit in which the Conservancy alleged DEP and the U.S. Army Corps of Engineers violated various provisions of surface mining and water pollution laws in permitting mountaintop removal mines.
The environmental groups are represented by Charleston lawyer Joe Lovett and Charlottesville, Va., lawyer Walt Morris.
The new notice focuses on a federal legal requirement that DEP review "cumulative hydrologic impact assessments," or CHIAs, before issuing any new surface mining permits in the state.
Under federal and state regulations, DEP is not supposed to issue 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."
The regulations require these assessments to include, among other things:
An analysis of the area within which impacts resulting from the proposed operation may interact with impacts of all anticipated mining on surface and groundwater systems.
A specific review of all anticipated mining within the cumulative impact area.
A determination of the cumulative hydrologic impact which constitutes material damage to each body of water, including each groundwater aquifer, in the cumulative impact area.
According to the rules, DEP must also require coal companies to develop surface and groundwater monitoring plans which will analyze water impacts from mining in areas outside of the direct area permitting for mining.
The notice of intent to sue lists 14 mining permits, including both surface and underground operations, which environmentalists allege were granted without the proper water studies.