Germany: Government Provides Overview on New Fracking Regulation
The German Federal Environment Ministry and the Federal Ministry of Economics have agreed on common core principles for the regulation of hydraulic fracturing (“fracking”).
The position of the ministries is that fracking for shale and coalbed methane, will not be allowed for economic purposes in the foreseeable future.
As it is not currently possible to assess the impact of fracking shale rock and coal beds due to a lack of empirical evidence in Germany, the proposed regulatory measures follows the principle that the protection of health and the protection of drinking water is an absolute priority.
The key points include:
1. Fracking projects for gas extraction from shale and coal bed rock above 3,000 meters are prohibited by the Water Act. Scientific testing measures for the exploration of effects on the environment and the subsoil are permitted, if the fracking fluid used does not pose a hazardous risk to water.
2. Fracking projects for conventional gas exploration (i.e. "tight gas") will be allowed to continue in principle. These projects have be carried out in Germany since the 1960s without danger to the health and drinking water under current mining and water law. Nevertheless, the government will introduce additional regulations, including not allowing fracking fluid to exceed classification higher than German water hazard class 1.
3. Fracking will be banned in water protection areas, mineral spring reserves, catchment areas of dams and lakes, which is directly related to the production of drinking water. This ban may be extended to drinking water catchment areas. In nature conservation areas and Natura 2000 areas, the construction of fracking facilities will not be allowed to ensure the protection of these particularly sensitive areas.
4. The following strict regulations apply to all fracking projects that may be carried out under acceptable conditions:
- The burden of proof for any damage from fracking measures or deep wells will be imposed on companies.
- A comprehensive initial state report must be drawn up.
- A comprehensive environmental impact assessment must be undertaken for all deep drilling.
- In the catchment area of public water points, or for direct use in foods (for example, mineral water or beer) harm to the groundwater must be ruled out (of water related concern principle).
- The identity of all substances used and their estimated usage amount must be disclosed.
- There is a requirement for ground and surface water monitoring.
- Backflows and wellbore integrity shall be supervised.
- There is an obligation to report to the appropriate authorites.
- A statutory authorization for a public register of substances will be introduced.
5. These strict regulations also apply to flow-back fracking fluids and deposit water. Specifics on how to deal with flowback and deposit water will be further specified based upon latest technology.
6. In addition, the federal states have the ability to introduce further regulatory options as part of their regional development plans.
These key principles are now being incorporated into a number of legislative changes, in particular an amendment to the Water Resources Act (BMUB) and amending regulation to the environmental impact analysis for mining (BMWi). The government stated that the new regulations are expected to be adopted after the summer legislative break, following a period of consultation.
A review the appropriateness of the legal ban will be undertaken in 2021 based on a federal government report about the state of science and technology with a specific focus on fracking technology.