Safeguards against fracking: all bark and no bite?

Safeguards against fracking: all bark and no bite?

In an earlier blog post, I looked at the principal areas in which the Infrastructure Act 2015 (InA 2015) would affect fracking. A key question was the extent to which certain designated areas were to be kept free from fracking:

calls for a moratorium were rejected and instead a suite of amends were inserted into the then Infrastructure Bill... Certain areas, like Areas of Outstanding Natural Beauty, National Parks, Sites of Special Scientific Interest and Groundwater Special Protection Zones were to be free from fracking.

A crafty last minute amend in the House of Lords, however, has seen the safeguarding provisions at IA 2015 section 50, tweaked enough to remove their bite.  The legislation now states that fracking can’t take place within:

    • ‘protected groundwater source areas’ or
    • ‘other protected areas’.

The catch? These areas are yet to be defined – but this must be done through regulations by 31 July 2015. This means the hot potato has been thrown to the incoming government to clarify and in the meantime we have no moratorium and no clear protection.

In the end, it was the Conservatives who returned to catch their own hot potato. On 17 July 2015 - the draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015 were published, providing the anticipated definitions.

Protected groundwater source areas

'Protected groundwater source areas' are set out as within 50m at the surface of an abstraction point used for domestic or food production purposes or within the 50-day ground water travel time for such an abstraction point. This effectively corresponds with what is known as Source Protection Zone 1.

Other protected areas

‘Other protected areas' have been narrowly defined as National Parks, the Broads, Areas of Outstanding Natural Beauty (AONB) and World Heritage sites, but notably does not include Sites of Special Scientific Interest (SSSIs), contrary to earlier statements made by Ministers.

Safeguards apply to a depth of 1,200m

The safeguards for ‘protected groundwater source areas’ and ‘other protected areas’ only protect to a depth of 1,200m. So rather than the outright ban for protected areas, originally promised by government, fracking will still be permitted under these areas.

In practice what this means is that there will be a ban for ‘protected areas’ and ‘protected groundwater source areas’ from the surface down to a depth of 1,200m. This really only provides a 200m extension to the universal 1,000m depth restriction on any land in England and Wales, already contained in InA 2015, s 50.

For SSSIs, however, there is no additional protection, so subject to applicable consents, fracking could take place at surface level and below 1,000m.

‘Associated fracking’

What’s more, just because there may be a ban on constructing fracking operations in certain ‘protected areas’, the regulations do nothing to prevent these areas from being accessed below the 1,200m threshold, by setting up operations outside of the banned areas and drilling horizontally through the fissures.

Although the regulations are still in draft form, given the recent announcements made by Secretary of State Amber Rudd concerning new government measures to fast track fracking planning applications, it looks like the present government will stop at nothing to ensure any measures that could hold back fracking development are kept to the very minimum.

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About the author:

Simone is an environmental law specialist and is head of LexisPSL Environment.

Simone moved to LexisNexis from Clyde & Co where she trained. Whilst at Clyde & Co Simone gained experience in contentious work, including large scale arbitrations, private claims and regulatory breaches, and a variety of non-contentious issues. Some of her experience includes the EU Emissions Trading System, the domestic Carbon Reduction Commitment Energy Efficiency Scheme, environmental due diligence, Energy Performance Certificates, permitting requirements and contaminated land.

Simone has written a number of articles, which have been published in various journals and is a trustee of the United Kingdom Environmental Law Association (UKELA).