BMU and BMWi Agree on Fracking Proposal

The Federal Environment Ministry (BMU) and the Federal Economics Ministry (BMWi) have presented a joint proposal to amend the Federal Water Resources Act (WHG) and the Ordinance on Environmental Impact Assessments Concerning Mining Projects (UVP-V) in order to regulate the use of the controversial fracking method, setting new conditions.

The proposed revisions cover deep drilling (Tiefbohrungen) using the hydraulic fracturing or fracking method for the exploration and extraction of (shale) gas or oil or geothermal energy.

The WHG amendment proposes the mandatory involvement of the water authorities. According to the new provision, the competent mining authority has to decide in mutual agreement with the water authorities whether drilling represents a use of water that requires a permit pursuant to WHG if  an operating plan pursuant to mining law provides for deep drilling (cf. proposed new Section 19 para 3a WHG). The new section shall also apply to the underground storage of the flow back.

Furthermore, a ban on fracking in drinking water protection areas shall be introduced (cf. proposed new Section 52 para 1 WHG). The explanatory memorandum points out that due to the reference made to Section 52 WHG in Section 53 para. 5 WHG, the new Section 52 para. 1 WHG will also apply to medicinal spring protections areas (Heilquellenschutzgebiet).

The former Section 52 para. 3 shall become para. 4. A second sentence shall be added, according to which deep drilling can also be limited in areas that are not drinking water protection areas (cf. proposed new Section 52 para 4 sent. 2 WHG). Fracking can also produce risks for drinking water when drilling (in other areas) creates underground connections of ground levels making it possible for hazardous substances to reach drinking water protection areas, the explanatory memorandum says. Drilling that has been permitted before the new law enters into force shall be protected by a grandfathering clause (cf. new Section 106a WHG).

The draft amendment of the Ordinance on Environmental Impact Assessments Concerning Mining Project makes an environmental impact assessment mandatory for deep drilling for gas, oil or geothermal energy involving the fracking technology. A grandfathering rule shall apply to projects already under way when the amendment enters into force (c.f new Section 4 para.4 UVP-V).

The fracking technology, which creates fractures in rocks and rock formations by injecting fluid into cracks to force them further open is used for extracting nat­ural gas and oil that lies within rock for­ma­tions deep beneath the earth’s surface and for geothermal purposes. It can potentially lead to contaminations of the ground water, the Federal Environment Ministry (BMU) and the Federal Environment Agency (UBA) said when presenting a study on the fracking technology in September 2012. Concerns and uncertainties existed in particular with regard to the chemicals injected into the shale rock to break it open and with regard to the disposal of the flowback, they pointed out.

A study presented by the Federal Institute for Geosciences and Natural Resources (BGR) on the potential of shale gas in Germany from June 2012 had identified shale gas deposits of between 6.8 billion  m3 and 22.6 billion  m3, depending on the calculation method.

The opposition critised the agreement between BMU and BMWi as still being too far-reaching. “The new law will not allow anything that was probihited until now. On the contrary, it will prohibit some things that were up to now allowed”, Mr Altmaier defended the bill, the newspaper Ruhrnachrichten says. The paper quotes Mr Altmaier as saying “for the foreseeable future there will not one single case of fracking in Germany”. He was optimistic, Ruhrnachrichten says, to find a broad majority for the bill (also) in the Federal Coucil (Bundesrat), which represents the interests of the federal states and is dominated by the opposition.

Source: Federal Ministry for the Environment, Nature Protection and Nuclear Safety; Ruhr Nachrichten