Draft Onshore Hydraulic Fracturing (Protected Areas) Regulations 2015 (Draft Regulations)

On 16 July 2015, the UK Government published the Draft Regulations, which define the areas that are to be protected from hydraulic fracturing (commonly referred to as fracking). The Draft Regulations were put before Parliament prior to 31 July 2015 and are expected to come into force in the Autumn 2015. The Draft Regulations will clarify the requirements that must be satisfied before fracking can take place onshore.

There are a number of consents that must be obtained before onshore fracking is allowed to occur. These include:

• consent from the relevant landowner;
• a petroleum and development licence;
• planning permission;
• an environmental permit;
• an abstraction licence;
• a well consent; and
• in some circumstances, written authorisation from the Coal Authority.

This update deals with new requirements that must be satisfied before a well consent can be granted by the Secretary of State. For a more in-depth discussion of how fracking is regulated in the UK, please refer to a copy of the Shale Gas Handbook (a quick-reference guide for companies involved in the exploitation of unconventional gas resources).

An absolute prohibition on fracking at a depth of less than 1,000 metres beneath the surface is expected to be imposed later this year. In addition, the Secretary of State will need to be satisfied of a number of stringent requirements before fracking can occur at a depth below 1,000 metres beneath the surface (section 4A and 4B of the Petroleum Act 1998 as amended). In particular, the Secretary of State will need to be satisfied that:

• the environmental impact of the development (including the well) has been taken into account by the local planning authority (LPA);
• appropriate arrangements have been made for the independent inspection of the integrity of the relevant well;
• the level of methane in groundwater has, or will have, been monitored in the period of 12 months before fracking begins;
• appropriate arrangements have been made for the monitoring of emissions of methane into the air;
• the associated fracking¹ will not take place within “protected groundwater source areas”²;
• the associated fracking will not take place within “other protected areas”³;
• in considering an application for the relevant planning permission, the LPA has taken into account the cumulative effects of the application, and any other applications relating to fracking;
• the substances used/expected to be used in associated fracking are approved or are subject to approval by the relevant environmental regulator;
• in considering an application for the relevant planning permission, the LPA has considered whether to impose a restoration condition in relation to that development;
• the relevant undertaker has been consulted before grant of the relevant planning permission; and
• the public was given notice of the application for the relevant planning permission.

A “protected groundwater source area” is defined in the Draft Regulations as any land at a depth of less than 1,200 metres beneath a relevant surface area. A relevant surface area means any land at the surface that is either:

• within 50 metres of a point at the surface at which water is abstracted from underground strata and is used to supply water for domestic or food production purposes; or
• within or above a zone defined by a 50-day travel time for groundwater to reach a groundwater abstraction point that is used to supply water for domestic or food production purposes.

The explanatory memorandum to the Draft Regulations states that the above definition is intended to align with the concept of a “Source Protection Zone 1”, i.e. a groundwater area that is protected under the Environmental Permitting (England and Wales) Regulations 2010 due to its particularly sensitive nature.

“Other protected areas” are defined in the Draft Regulations to include areas of land at a depth of less than 1,200 metres beneath:

• a National Park (as defined in the National Parks and Access to the Countryside Act 1949);
• the Broads (as defined in the Norfolk and Suffolk Broads Act 1988);
• an area of outstanding natural beauty (as defined in Part 4 of the Countryside and Rights of Way Act 2000); or
• a World Heritage Site (meaning a property appearing on the World Heritage List kept under article 11(2) of the UNESCO Convention for the Protection of the World Cultural and Natural Heritage adopted at Paris on 16 November 1972).

Interestingly, the definition of “other protected areas” has not been extended to include Sites of Special Scientific Interest (SSSIs).

The DECC has also announced that it will shortly provide information as to how it will ensure that the above safeguards are enforced in a way that “does not impact on conventional drilling operations”.