Clarity has now been provided on where fracking operation may take place. The draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015 (Protected Areas Regulations) define, "protected groundwater source areas" and "other protected areas", for the purposes of the Petroleum Act 1998. These were published on 17 July 2015.
Background to the Regulations
The Conservatives have consistently committed to supporting the development of UK indigenous oil and gas resources including shale gas; the conservative party election manifesto reiterated this: "We will continue to support the safe development of shale gas, and ensure that local communities share the proceeds through generous community benefit packages."
To this end the Government established a new tax regime and streamlined the regulatory regime to allow exploration for shale gas to begin, including by developing a single application form for environmental permits and introducing underground access rights.
Further the Government made amendments to section 50 of the Infrastructure Act 2015 to introduce certain safeguards in relation to hydraulic fracturing.
Section 50 is not yet in force. When it is brought into force the Petroleum Act 1998 will be amended to restrict hydraulic fracturing (as defined in the Petroleum Act), from the surface to a depth of 1,000 metres anywhere in England and Wales. The section goes on to further stipulate that no hydraulic fracturing can take place within "Protected Groundwater Source Areas" or "Other Protected Areas". However, these terms were left undefined and instead a statutory duty was imposed on the Secretary of State to lay draft regulations by 31 July 2015 setting out these definitions – those draft regulations are the Protected Areas Regulations.
Definition of the areas in which fracking operations may take place
The Government's impact assessment for the Protected Areas Regulations states that a number of options were considered involving the spatial extent (i.e. surface) of more or less restricted areas.
The Government carried out no public consultation on their proposed definitions or on either dropping SSSIs from the list of protected areas or setting limits for groundwater exploration. However the Impact Assessment to the Protected Areas Regulations states that it consulted with the Environment Agency and Natural Resources Wales on the definition of protected groundwater source areas and that the regulators are fully supportive of the definition.
Protected Areas definition
The Government has decided to narrow the scope of the definition of protected areas. The Protected Areas Regulations will have the effect that there will be a surface level ban for fracking development in: National Parks, the Broads, AONBs, and World Heritage Sites (but notably not in SSSIs). However, fracking would be allowed under these areas below 1200 metres. In SSSIs there will be no ban on fracking developments at a surface level and it would be permitted below 1,200 metres (subject to the usual health, safety and environmental safeguards and obtaining planning and regulatory permissions). An absolute prohibition on hydraulic fracturing at a depth of less than 1,000 metres beneath the surface already applies to any land (in England and Wales).
Ministers had back in January 2015 announced that they would introduce “an outright ban on fracking in National Parks, SSSI and Areas of Outstanding Natural Beauty (AONB)”. Subsequently it became clear that the Government would permit fracking underneath the protected areas.
Ground Water Source Areas definition
The protected groundwater source areas (SPZs) are defined as any land at a depth of less than 1,200 meters within 50 meters of a point at which water is abstracted, or within a zone defined by a 50 day travel time for groundwater to reach a groundwater abstraction point (paragraph 3(2)(d), Part 3, schedule 3 to the Environmental Permitting (England and Wales) Regulations 2010).
The Impact Assessment states that there is a balance to be struck between the economic benefits from allowing hydraulic fracturing everywhere and excluding access to the hydrocarbons in some areas that are deemed to merit special protection. The Government believes that the chosen option affords additional protections for National Parks, Areas of Outstanding National Beauty and World Heritage Sites and represents a narrower scope in respect of the definition of protected areas, thereby minimising the consequential loss of activity and economic benefit.
The regulations laid before each House of Parliament, will be debated in September this year.
Scotland and Wales
The measures will not apply to Scotland where a moratorium on granting planning permission for unconventional oil and gas developments has been in place since January 2015. Scotland will carry out a full public consultation on unconventional oil and gas extraction to ensure the public's opinion is heard on the issue - but there is continuing controversy. Although every SNP MP voted in favour of a UK-wide moratorium, Friends of the Earth have called for Nicola Sturgeon to clarify the SNP's position on fracking.
The Welsh Government issued a new direction to Mineral Planning Authorities to notify the minister of any planning application for unconventional extraction techniques which is intended to introduce a de facto moratorium in Wales. The Welsh shale prospectivity falls mostly outside of AONB, National Parks and World Heritage Sites. Therefore, the protected areas definition would have very little impact on any future Welsh shale development. It should also be noted that the most 'promising' areas for onshore unconventional hydrocarbons are considered to be midland Scotland and England.
All significant oil and gas operations, such as drilling, hydraulic fracturing or production, require planning permission and are subject to operational regulation by the relevant Environmental Regulator (ie the Environment Agency or Natural Resources Wales, as the case may be). When commenced, section 50 of the Infrastructure Act 2015 will amend the Petroleum Act 1998 so that the Secretary of State cannot issue consent for associated hydraulic fracturing activity unless the environmental impact of the development which includes the relevant well has been taken into account by the local planning authority. Planning permission will be granted only where the proposed activity is acceptable in terms of land use planning, and the conduct of permitted operations will have to meet the environmental requirements specified by the Environmental Regulator.
When questioned in Committee on DECC's priorities for 2015, on 21 July 2015, Amber Rudd made some statements relating to shale gas (the full transcript can be found here). The Minister was asked what contribution to the UK energy mix, especially in light of the recent planning decisions and the opposition in certain areas, shale gas would make. Amber Rudd replied that shale gas will be an important part of the energy mix and an important part of achieving the decarbonisation targets. She said to the Committee that the Government had to 'win the battle' and make it clear that experts have given their views and are happy that shale gas development is subject to a secure and safe regulatory system in this country. She noted that DECC were disappointed with the recent County Council's decisions (read our briefing on these decisions here). When questioned on how she thought the gap was to be bridged between the opposition in certain areas, she replied that it was for developers to make this case.
It is no surprise to see the Government in favour of shale gas development and these latest changes, though incremental on their own, fit a general pattern of the Government making changes to assist the industry in 'winning the battle'.