Rules on fracking, set out in the Infrastructure Act, came into force today.
They are in section 50 of the act, which sets the depth at which fracking is prohibited and creates an official definition based on the volume of fluid used. The rules also identify requirements that must be met before fracking is allowed to go ahead.
The Energy Minister, Andrea Leadsom signed a commencement order for the rules on 24th March 2016, the day the House of Commons rose for Easter. Link to commencement order
But proposed restrictions on hydraulic fracturing from the surface of some landscape, wildlife and drinking water areas are not in force. The government has not yet published the result of a consultation which ended 16 weeks ago (See section Surface protected areas below).
What is needed before consents can be issued?
Section 50 of the Infrastructure Act adds two new sections to the Petroleum Act 1998.
The Onshore hydraulic fracturing: safeguards set out conditions for a well consent, issued by the Secretary of State for Energy and Climate Change before fracking can begin.
The legislation says the Secretary of State must not issue a well consent if fracking is to be carried out at depths of less than 1,000m.
For depths of 1,000m and below a hydraulic fracturing consent is needed. There are 11 conditions that must be met before a hydraulic fracturing consent is issued.
The conditions cover: the environmental impact of a development, independent well inspections, monitoring of methane in groundwater, monitoring of methane emissions to air, consideration of cumulative effects, regulatory approval of substances used, restoration conditions, banning fracking in groundwater source areas and other protected areas, consultation of the local water company and notifying the public.
The legislation also says that before a hydraulic fracturing consent can be granted a scheme has to be in place to provide financial or other benefit to the local area. There also have to be arrangements for publishing results of monitoring methane emissions to air.
What is fracking and what are protected areas?
Section 50 of the Infrastructure Act also creates an official definition of fracking for the first time, based on the volume of fracking fluid. To count as hydraulic fracturing, an operation must inject more than 1,000 cubic metres at each stage or more than 10,000 cubic meters in total.
It also requires the Secretary of State to define protected groundwater source areas and other protected areas.
This got complicated when the government separated what it meant by protected areas below and at the surface.
The sub-surface definition was set out in the Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015, passed narrowly by MPs in December last year.
These regulations, which came into force on 10th March 2016 (link), defined protected groundwater source areas as “any land within 50m of a point at the surface at which water is abstracted from underground strata and used to supply water for domestic or food production purposes”.
They defined Other protected areas as the land at depths of 1,200m or less below National Parks, Areas of Outstanding Natural Beauty, the Broads and World Heritage Sites.
These regulations allowed fracking below (but not from the surface of) these protected areas providing it was at depths of 1,200m or more.
Surface protected areas
In November last year, the Government proposed to restrict fracking at the surface from a wider range of protected areas.
A consultation document defined the surface protected areas as: National Parks, the Broads, Areas of Outstanding Natural Beauty, World Heritage Sites, drinking water Source Protection Zones 1, Sites of Special Scientific Interest and Natura 2000 nature conservation sites.
The consultation proposed no fracking from the surface of these areas. But it said the restrictions would not be applied through legislation but by a condition in Petroleum Exploration and Development Licences.
The licences to be issued under the 14th onshore licensing round, confirmed in December 2015, would include this condition, the government proposed. For previous licences, the government said it would make a policy statement which would indicate the Secretary of State would not grant consent for fracking at the surface of these protected areas.
The consultation closed just over 16 weeks ago on 16th December 2015 but the outcome has not yet been published. A spokesperson for the Department of Energy and Climate Change said this afternoon no date had been set for the publication of the consultation report but it was expected.
- The restrictions which come into force today apply to England and Wales. But the Welsh Government has issued a notification which allows it to decide planning applications for fracking where the local authority is minded to approve.