Defend Lytham Urges Mark Menzies to vote against the Statutory Instrument legislation
Defend Lytham has today sent the following open letter to Mark Menzies, MP for Fylde.
Dear Mr Menzies
You have consistently argued that fracking can go ahead, provided there are robust regulations in place.
Those robust regulations must surely start with a commitment to ban fracking from areas that have already been officially designated by law as having high intrinsic value, either because they provide us with drinking water, are important wildlife reserves, and have important landscape value for wildlife, the general public and the local economy.
We are therefore writing to you, on behalf of the members of Defend Lytham and the wider community, regarding secondary legislation on fracking that is to be discussed, and then voted on, in Parliament this week.
Specifically, we would be grateful if you could answer the following questions before the Committee hearing takes place tomorrow.
- Will you attend the Delegated Legislation Committee hearing on Tuesday and speak against these flawed proposals?
- Will you shout ‘No’! to force a division when a motion to approve the Statutory Instrument is announced in the House of Commons?
- Will you vote against the Statutory Instrument legislation when it returns to the Commons for a full vote?
- Will you ask for new regulations to be brought forward to ban fracking both in and under SSSIs, National Parks and AONBs and all groundwater SPZs, including a ban on surface works within these protected areas, and a ban on drilling horizontally under these areas from wells situated just outside their borders?
We have prepared the following short briefing on the background, wording and implications of the Statutory Instrument that is to be debated on Tuesday for your information. We would be grateful if you could take the time to read it before letting us know the answers to the above questions.
In January this year, the Government accepted an amendment to the Infrastructure Bill (now Act) that would have banned fracking in all groundwater source protection zones (SPZs), which are the areas that are designated to protect the aquifers that provide our drinking water.
Further to this, during the House of Commons debate on the Infrastructure Bill on 26th January, the then Energy Secretary Amber Rudd also made the following commitment on the floor of the House of Commons: “We have agreed an outright ban on fracking in national parks, sites of special scientific interest and areas of outstanding natural beauty.” Please see the relevant page in Hansard for the above quote.
These specific commitments were not, however, included in the text of the Infrastructure Act when it was passed, despite promises to do so on the floor of the House.
Section 50, Point 4A of the Infrastructure Act includes the following text:
(5) The associated hydraulic fracturing will not take place within protected groundwater source areas
(6) The associated hydraulic fracturing will not take place within other protected areas
However, what would constitute a ‘protected groundwater source area’ and ‘other protected areas’ as related to this particular piece of legislation was postponed until after the General Election by the following sections (Section 50, Point 4B) in the Infrastructure Bill, which states:
(4) The Secretary of State must, by regulations made by statutory instrument, specify—
(a) the descriptions of areas which are “protected groundwater source areas”, and
(b) the descriptions of areas which are “other protected areas”,
(6) The Secretary of State must lay a draft of the first such regulations before each House of Parliament on or before 31 July 2015.
On 16th July, just two days before the summer recess, Amber Rudd announced the content of the aforementioned Statutory Instrument (or SI), which, as you know, is a method of introducing secondary legislation on Bills that have already been passed). However, the content of this Statutory Instrument broke promises that had been made by the Government to the British public earlier in the year. Amber Rudd’s broken promises were widely reported in the press, as you can see in these articles in The Guardian.
Protected Groundwater Source Areas
As set out by the Environment Agency, Groundwater Source Protection Zones 1, 2 and 3 are areas around aquifers used for drinking water. The water protected by these areas provides a third of our drinking water.
The type of SPZ is defined by the travel time it would take for water to filter from the SPZ area to the aquifer:
- SPZ 1 is defined as the total areas in which water would get back to the drinking water source within 50 days, and has a minimum radius of 50 metres.
- SPZ 2 is where this would take just over a year – 400 days, and has a minimum radius of 250 metres
- SPZ 3 designates the full catchment area where water would travel back to the drinking water source.
The amendment, as accepted by the Government in January, prohibited fracking in any and all SPZs without exception. However, the text of the SI to define which SPZs are protected is as follows:
Definition of ‘protected groundwater source areas’
2.–(1) This regulation defines ‘protected groundwater source areas” for the purposes of Section 4A of the (Infrastructure) Act.
(2) A ‘protected groundwater source area” is any land at a depth of 1200 metres beneath a relevant surface area.
(3) For the purpose of Paragraph 2, “relevant surface area” means any land at the surface that is –
(a) 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
(b) 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 regulations as described above in the SI therefore only relate to SPZ1s – which are defined by a 50-day travel time and within 50 metres, as in 3a and b above – where fracking would be permitted below 1,200m (which is only 200m more than the depth allowed in any piece of unprotected land).
However, there are no restrictions on drilling in SPZ 1, 2 or 3, which would create pathways for possible contamination. Under these regulations companies would be allowed to drill through any aquifer in any SPZ. There are also no restrictions on surface activity in any SPZs. This means there are risks of surface and groundwater contamination: if there is a surface spill this could contaminate the surface water and groundwater.
All SPZs (1,2, and 3) feed aquifers used for drinking water and should be protected from the high risks of fracking.
Other Protected Areas
As mentioned above, Amber Rudd had promised the British public during the debate in the House in January that: “We have agreed an outright ban on fracking in national parks, sites of special scientific interest and areas of outstanding natural beauty.”
However, the relevant text defining ‘other protected areas’ in the Statutory Instrument is as follows:
Definition of ‘other protected areas’.
3. – (1) This regulation defines “other protected areas” for the purpose of section 4A of the (Infrastructure) Act.
(2) “Other protected areas are areas of land at a depth of less than 1,200 metres beneath –
a) a National Park;
b) The Broads;
c) an area of outstanding natural beauty: or
d) a World Heritage site
There are a number of points to make about the above definition of ‘other protected areas’ as defined in the Statutory Instrument.
Sites of Special Scientific Interest (SSSIs)
Firstly, it is clear that SSSIs are not included as ‘protected areas’ under the terms of the Statutory Instrument, which means that fracking would be allowed in any SSSI below a depth of 1,000m (the minimum depth of any fracking operation, as defined elsewhere in the Infrastructure Act).
Therefore in SSSIs, which are the most ecologically sensitive of these sites, fracking companies would also be permitted to drill from the surface and frack below 1000m.
On this point, the RSPB said on 16th July that “The government has reneged on its commitment to rule out fracking in some of our most important wildlife sites. Despite promising in January to exclude fracking from SSSIs, today’s announcement ignores any such commitment, leaving some of the UK’s most valuable wildlife sites exposed to risk from future fracking.”
The omission of SSSIs from this legislation has also been strongly criticised by Wildlife Trusts and the RSPB has pointed out that nearly 300 SSSI have been included in the 14th Round of PEDL licences, and has again called for fracking in these areas to be banned.
National Parks and Areas of Outstanding Natural Beauty (AONBs)
While the text in the Statutory Instrument appears to ban fracking in National Parks and AONBs, it is very important to note that the Statutory Instrument specifically defines these areas as areas of land at a depth of less than 1,200 metres from the surface.
This means, in effect, that the National Park stops at a depth of 1,200 metres and becomes ‘Crown land’, thus available for potential fracking.
At this point it is important to note that the definition of ‘hydraulic fracturing’ in the context of the Infrastructure Act is very limited, and refers only to the actual process of fracturing rock underground, not the whole process of drilling and production. This is specified in Section 4A, Point 1 of the Infrastructure Act, where ‘hydraulic fracturing’ is defined as ‘fracturing of shale or strata encased in shale’ – ie the underground fracturing of shale rock only – not the surface works that would inevitably accompany such hydraulic fracturing.
It is therefore significant that there is nothing contained in the Statutory Instrument or the Infrastructure Act itself to limit any surface works, such as establishing of well-sites or drilling of wells, including within the boundaries of National Parks and AONBs. So, given that the National Park or AONB only extends 1,200m below the surface, the scenario of a fracking company drilling through the park to fracture the rock underneath would not be prohibited under this legislation.
This means that there is nothing within the Infrastructure Act to prevent fracking companies from being allowed to drill from the surface in National Parks and AONBs, as long as they frack below 1,200m (which they would have to anyway, as the Bowland Shale is about 2-3,000m below the surface).
Fracking companies would also be allowed to set up their drilling rigs around the edges of these areas and drill horizontally underneath them.
The Delegated Legislation Committee meeting and subsequent vote
This Statutory Instrument legislation is to be debated at a Delegated Legislation Committee on Tuesday, October 27th, at 2.30 pm – Committee Room 9. The committee is made up of 18 MPs, only one of whom has the threat of fracking in his or her own constituency.
Any MP is allowed to attend the DL Committee meeting and speak in favour or against the legislation, although only those on the committee can vote.
After the DL Committee has met, the SI needs to be formally approved by the Commons. This means that on the next day, or soon after that, a motion for its approval will appear as one of the final items of business on the daily Agenda (or Order Paper).
If enough MPs shout ‘No!’ when this motion to approve SI is announced, it will force a division and there will need to be a full vote in the house (although sadly not a debate). This vote will not be on the same day, but would normally be deferred until the next Wednesday (4th November).
Four questions that your constituents would like answered
Having read our briefing, we would be grateful if you could answer the following questions and either email your responses or post them on your website before the Committee hearing on Tuesday.
1 Will you attend the Delegated Legislation Committee hearing on Tuesday and speak against these flawed proposals?
2 Will you shout ‘No’! to force a division when a motion to approve the Statutory Instrument is announced in the House of Commons?
3 Will you vote against the Statutory Instrument legislation when it returns to the Commons for a full vote?
4 Will you ask for new regulations to be brought forward to ban fracking both in and under SSSIs, National Parks and AONBs and all groundwater SPZs, including a ban on surface works within these protected areas, and a ban on drilling horizontally under these areas from wells situated just outside their borders?
You have been clear that if shale gas extraction is to go ahead it can only do so with robust regulation and strict environmental controls in place.. We ask you to demonstrate a visible commitment to this position by voting against this secondary legislation and asking the government to draft comprehensive legislation to ban fracking in and under legally protected areas.
Thank you for taking the time to read our letter, and we look forward to hearing your response as a matter of urgency.
The Defend Lytham Committee