Commentary on Sections Petroleum and geothermal energy in deep-level land Section 50: Onshore hydraulic fracturing: safeguards
285.Section 50 inserts two new sections into the Petroleum Act 1998 after Clause 4. As this relates to the petroleum licensing regime, geothermal activities are excluded from this section 50. Section 4A “Onshore hydraulic fracturing: safeguards” sets out conditions for a well consent that is required by an onshore licence for England and Wales in relation to hydraulic fracturing.
286.Subsection (1) requires that the Secretary of State must not issue a consent to drill a well unless that well consent contains conditions (a) prohibiting associated hydraulic fracturing at a depth of less than 1000 metres and (b) requiring a hydraulic fracturing consent for associated hydraulic fracturing at a depth of 1000 metres and below. Subsection (2) clarifies that the licensee, or a person on behalf of the licensee, must apply for such a hydraulic fracturing consent.
287.Subsection (3) provides that a hydraulic fracturing consent will not be issued unless the Secretary of State is satisfied that the conditions (a) in column 1 of the table in subsection (5) and (b) in subsection (6) are met. The Secretary of State must also be satisfied that it is appropriate to issue the consent. Subsection (4) refers to the documents listed in the same table on which the Secretary of State may rely on to be satisfied that the conditions have been met. However, subsection (5) clarifies that the absence of these documents does not prevent the Secretary of State from being satisfied that the conditions have been met; provided that, in accordance with subsection (3), the Secretary of State is satisfied that the conditions are indeed met he may grant a hydraulic fracturing consent.
288.The table lists eleven conditions (column 1) and corresponding documents that may be considered to be sufficient for the Secretary of State to be satisfied that the conditions have been met (column 2). The conditions relate to: the environmental impact of a development, independent well inspections, monitoring of methane in groundwater, monitoring of methane emissions, banning hydraulic fracturing within protected groundwater source areas and other protected areas, consideration of cumulative effects, regulatory approval of substances used, restoration conditions, consultation of relevant (i.e. water and sewage) undertakers, and public notification. The Secretary of State is not limited to relying on the documents listed in column 2 and may instead rely on alternative documents in determining whether the conditions have been met.
289.Subsection (6) sets out further conditions to the issuing of a hydraulic fracturing consent, requiring arrangements to be in place for publication of the results of methane emissions reporting and the existence of a scheme to provide financial or other benefit for the local area.
290.Subsection (7) allows for the hydraulic fracturing consent to be issued subject to any conditions considered appropriate by the Secretary of State, while subsection (8) clarifies that a breach of a condition is considered a breach of the well consent.
291.Section 4B “Section 4A: supplementary provision” contains further definitions and clarifications. “Associated hydraulic fracturing” is defined in subsection (1) and subsection (2) sets out the mechanism for determining the depth at which associated hydraulic fracturing takes place. Subsection (3) provides that subsections (1) and (2) apply to both section 4A and 4B.
292.Subsection (4) requires the Secretary of State to specify by regulations the meaning of “protected groundwater source areas” and “other protected areas”. Subsection (5) makes these regulations subject to the affirmative resolution procedure and subsection (6) stipulates that a draft of these regulations must be laid before Parliament on or before 31 July 2015. Subsection (7) requires the Secretary of State to consult the Environment Agency for England and the Natural Resources Body for Wales before making any regulations on the definition of “protected groundwater source areas” in England and Wales respectively.
293.Subsection (8) contains various definitions, including the meanings of “hydraulic fracturing consent”, “onshore licence for England and Wales” and “well consent”. Subsection (9) provides the Secretary of State with the power to amend the definition of “onshore licence for England and Wales” as appropriate under regulations made under section 4 of the Petroleum Act 1998. Subsection (10) allows the Secretary of State to amend column 2 of the table in 4A and make any consequential amendments to section 4A. In accordance with subsection (11) any such regulations must be subject to the affirmative procedure.