protected areas consultation – how to respond

What’s this consultation about?

Basically it’s to do with how much protected areas, such as National Parks, AONBs, SSSIs and other designated areas, are protected from fracking operations.

Isn’t this already in the Infrastructure Act?

The Infrastructure Act only covers underground activities, not above-ground activities. So, some of it is and some of it isn’t. For example, the secondary legislation, proposed in July, allows fracking under all protected areas and aquifers, as long as this occurs below 1,200m. The normal distance at which fracking is allowed under land not in protected areas is 1,000m.

What’s the reason for the extra 200m?

A good question. We have found no explanation why this extra 200m would make any difference, particularly as the Bowland Shale in Yorkshire and Lancashire is between 2,000 and 3,000m deep anyway. However, what the Secondary Legislation does do is define a ‘bottom’ to protected areas – so now a National Park, for example, is defined as the area of land from the surface down to 1,200m. Below that, it’s fair game, it seems.

Also, under the current legislation, it will be possible for companies to set up their well-sites just outside the protected areas and horizontally frack underneath them – which of course is the reason for the legislation in the first place.

Has this secondary legislation been passed yet?

Not yet. The so-called ‘Statutory Instrument’ that defines protected areas was debated in a Delegated Committee Meeting on 27th October, in which the legislation was passed on a vote of 10-8 (there were ten Conservative MPs on the committee …). For more on this, please check out Drill or Drop.

Before this meeting, we wrote an open letter to Kevin Hollinrake MP, asking him to speak at the meeting [he didn’t] and to oppose the legislation when it comes to the House. However, the legislation still needs to be voted on in the House of Commons, which could happen next Wednesday.

We never received a reply to our letter, by the way. Kevin did find time to speak to the Press, however, saying in the Northern Echo that he was ‘delighted by the double u-turn’.

So back to my original question. What’s this consultation about?

We’re getting to that. During the meeting about the Statutory Instrument, Amber Rudd announced that the government would bring in other measures to prevent above-ground fracking activities in these protected areas. These now include SSSIs, by the way, which the government said would be protected in January, then that they wouldn’t in July – making this a double-u turn (or is that a W-turn)?

However, there’s a catch. And a rather sneaky one at that.

The depth that fracking can take place under protected areas is set out in legislation. The details are in The Infrastructure Act 2015, which amends the Petroleum Act 1998, along with secondary legislation in the still-to-be-ratified Hydraulic Fracturing Regulations 2015.

The so-called ‘ban’ on fracking operations from the surface of protected areas will, if government plans are approved, be a condition in a drilling company’s Petroleum Exploration and Development Licence – so not enshrined in law. But this is just for new licences. For existing licences, the government will simply issue a policy statement. This, according to the proposals, will indicate that

“The Secretary of State [presumably of Energy and Climate Change] is not minded to grant consent for any programme which includes ‘associated hydraulic fracturing’, as defined in 4B(1) of the Petroleum Act 1998, from new or existing wells that have been drilled at the surface in specified protected areas”.

Call us cynical, but saying that the government are “not minded” to do something doesn’t seem quite the same as a ban. (Not that we don’t trust the government’s promises or anything …)

Anyway, it is these proposals for above-ground protection that are currently out for a Public Consultation.

Finally!  So how can I respond to the consultation?

The Consultation is called Surface Development Restrictions for Hydraulic Fracturing. You can find the official 16-page document by clicking on this link, and it’s quite easy to read if you can stomach the government pro-fracking spin.

• To respond to this consultation, send your comments to this email address: surface.restrictions@decc.gsi.gov.uk
  
• Please put this reference in your subject line: URN 15D/513 – Surface Development Restrictions
• You can also post your response to: The Office of Unconventional Gas and Oil, Department of Energy & Climate Change, 3rd Floor Area B, 3 Whitehall Place London, SW1A 2AW.

What do I have to do?

There are only three questions to answer, as shown below. We have given suggested answers for each one, but of course please feel free to say what you like in response to each one. Also, feel free to comment on how these new rules would affect any specific protected areas that you know about.

QUESTION 1

Do you agree with the proposed approach to restricting surface developments in specified protected areas ((National Parks, the Broads, Areas of Outstanding Natural Beauty (AONBs), World Heritage Sites, Source Protection Zones 1, Sites of Special Scientific Interest, Natura 2000 areas and Ramsar sites) through licence conditions? Do you agree with the scope of the restrictions to be applied in England? Please give reasons. Please specify whether your response relates to new or existing licences or both.

Here are some points you can make. Please write your response in your own words if possible (although if all you have time for is to cut’n’paste these bullets, that will still be very useful).

Licence conditions

• Restrictions preventing fracking via surface developments in protected areas are absolutely necessary, but these should be put in place through primary legislation, not through licence conditions or general government statements.
• Licence conditions can be changed by agreement with the relevant government department and the licence holder without changing the law. Primary legislation would give more robust long-term protection and is harder to change in the future.
• The wording of the proposed licence condition restrictions for new PEDL licences has not been made public, so it is impossible to comment on how robust this may be. The fact that this wording is not included in the consultation is a cause for concern.
• PEDL licence agreements, including the suggested licence conditions, are not currently placed in the public domain, so the public will not be able to read what restrictions and conditions are included when licences are granted. All PEDL licences should be placed on a public online register so that the general public has access to the restrictions and conditions that are included.
• For existing licences, it is entirely unsatisfactory to say that fracking is ‘banned’ on the surface of protected areas simply because of a government statement saying they are ‘not minded to grant consent for any programme which includes associated hydraulic fracturing’. This would appear to hold little legal weight and could be changed at any time at the whim of a Minister.
• These restrictions would only apply to what is termed ‘associated hydraulic fracturing’. The Petroleum Act 1998, as amended by the Infrastructure Act 2015, defines hydraulic fracturing of shale rock by the amount of fluid used, specifically: “more than 1,000 cubic metres of fluid at each stage, or expected stage, of hydraulic fracturing, or more than 10,000 cubic metres in total.” Does this mean that if a company says it will slightly less fluid, it will be able to avoid the restrictions and be granted permission to frack in protected areas? This appears to be a clear loophole that could easily be exploited in the future.
• The Government should therefore put forward new primary or secondary legislation to ban all fracking, with whatever quantity of water proposed, on the surface of and underneath all protected areas. This should replace the proposed combination of licence conditions and general government policy statements, which will provide very weak protection for our most sensitive natural areas and wildlife protection zones.

Scope of restrictions

• It is appropriate that the scope of restrictions includes National Parks, The Broads, AONBs, World Heritage sites, SSSIs, SPZ 1, Natura 2000 and Ramsar sites.
• It is a positive step to include SSSIs, having said in July that they would not be included. This is helpful for wildlife and nature conservation.
• Source Protection Zones 2 and 3 should also be included in the restrictions, as they often feed in to SPZ1 areas and are in themselves important places for drinking water supplies.
• Currently legislation allows companies to establish fracking well-sites just outside protected areas and drill underneath them. This could result in protected areas being ringed by fracking well-sites.
• Fracking and drilling are noisy activities that often take place 24 hours a day, and cause air, water and noise pollution. Even if the well-site is just outside the protected area, its impacts will still be felt within the protected area, and will disturb animals, birds, tourists and residents.
• It is worth noting that many SSSIs, AONBs and other protected areas are relatively small, and if there are fracking well-sites on their borders, the effect of traffic, noise, pollution and possible water contamination could still damage, and even destroy, these areas, even if there is no fracking within these areas.
• The restrictions should also include a buffer zone around every protected area of a minimum of 2 miles, so that the areas themselves have proper protection.
• These restrictions should apply to both new and existing PEDL licence areas.
• These restrictions should also apply to the whole of the UK, not just England, as currently proposed.
• These restrictions should apply to all methods of unconventional hydrocarbon extraction, including coal bed methane and underground coal gasification, not just fracking shale rock.

QUESTION 2

What would the impact(s) be on new and existing licensees if the proposals were adopted?
Please provide evidence where possible, and specify whether your response relates to new and/or existing PEDLs.

• If the proposals in the consultation were adopted, they would improve protection compared to the current situation in both new and existing PEDL licence areas.
• The impact on new licences, for example proposed PEDL licences in the North York Moors National Park and the Howardian Hills AONB, would probably mean that companies would only be able to put in planning application
• The impact of the proposals on existing licences would be less clear, given that fracking would only be prevented in these areas by a general government policy statement, not by either legislation or a planning condition.

QUESTION 3

Does existing regulation provide sufficient protection for the areas in which we are proposing to restrict surface developments? If not, what would be the additional benefit if the proposals were adopted (e.g. in terms of environment, heritage, landscape value, economic impacts)?
Please provide evidence where possible.

• Existing regulation certainly does NOT provide sufficient protection for the protected areas included in this consultation.
• Existing regulation does not prohibit fracking either within or under protected areas, and so cannot be considered to protect them in any way.
• If the proposals contained within the consultation are adopted, they will offer better protection for the areas mentioned, provided they were implemented effectively.
• There would be some benefit to the environment, heritage and landscape value, and in rural areas the local tourist economy would be better protected.
• In Ryedale, for example, about 25% of jobs are connected with the visitor economy, a total of about 6,000. By imposing restrictions on fracking in protected areas, it is more likely that these jobs will not be eroded by the industrialisation of the countryside that would accompany commercial fracking.
• However, the local economy, environment, heritage and landscape value are in great danger of being eroded by fracking outside protected areas, as this will change the nature of the area, have a negative impact on wildlife and landscape, and consequently reduce the visitor numbers in areas that rely on tourism.
• Also, mentioned previously, many protected areas would suffer greatly if fracking is allowed to take place just outside their borders, and the impacts on protected species, birds, nocturnal animals and water creatures could still be very damaging.