Commercial Whale Watching

Briefing and Decision

Julie Watson, PhD

Killer Whale Policy Lead
Washington Department of Fish and Wildlife
December 18, 2020
 Timeline
4/22 2SSB 5577 passes 12/4-5 Fish and Wildlife
7/28 Bill effective date Commission hearing on
9/15 Adaptive Management proposed rules
10/9-20 Application period for recommendations from the
Advisory Committee members Science Panel 12/11 Final EIS publication
11/19 Advisory Committee 9/23 Draft SEPA EIS published 12/15 Special session
members selected for public comment 12/18 Scheduled decision

April-December 2019 September December

January - August 2020 October – November 2020 January

1/17 – 7/8 Advisory Committee

meetings 10/1-8 Early draft rules & public Rules go into effect
comment Implementation
4/27 & 5/6- Science Panel
stakeholder workshops 10/19 Public Meeting E-rules if needed
6/8 Science Panel feedback to 10/21 CR-102 with draft rules
Advisory Committee and SBEIS filed
7/31 Science Panel feedback on 10/23 SEPA public comment
two rule packages proposed in ends
the Advisory Committee process

Department of Fish and Wildlife 2

RCW 77.65.620
“The department must adopt rules for holders of a commercial
whale watching license established in RCW 77.65.615 for the
viewing of southern resident orca whales for the inland waters
of Washington by January 1, 2021...”
The rules must be designed to reduce the daily and cumulative impacts
on southern resident orca whales and consider the economic viability of
license holders.

The department shall at a minimum consider protections for southern

resident orca whales by establishing limitations on:

(a) The number of

(b) The number of
commercial whale (c) The duration spent (d) The areas in which
days and hours that
watching operators in the vicinity of commercial whale
commercial whale
that may view southern resident orca watching operators
watching operators
southern resident orca whales; and may operate.
can operate;
whales at one time;

Department of Fish and Wildlife 3

Optimizing
Indirect benefits Whale Report Alert System
to SRKW B.C. Cetacean Sightings Network

Implementable,
enforceable, measurable,
and able to be adaptively
managed

The rules must be

designed [using best
available science] to
reduce the daily and
cumulative impacts on
southern resident orca
whales and consider
the economic viability
of license holders.

Department of Fish and Wildlife 4

Conservation need
Prey availability and noise are interrelated: Increasing prey by 15% and
decreasing vessel noise by 50% is expected to recover the population
more effectively than increasing prey by 30% alone (Lacy et al. 2017).
SRKW can handle more disturbance/noise when prey is abundant.
This legislation and rulemaking were specifically designed to address
CWW noise and disturbance impacts, which are not negligible:
➢ Commercial whale watching (CWW) makes up 0.6% of ambient noise in the Salish Sea
(MacGillivray et al. 2016), but that isn’t the same as what’s experienced by the whales.
➢ Noise levels received by SRKW are correlated with the number of vessels within 1000
meters (Holt et al. 2009). CWW make up more than half (56% in 2019) of boats in the
vicinity of orcas (Soundwatch 2019).
➢ Tollit et al. (2017) found that CWW are responsible for around 1/3 of SRKW’s lost
foraging time each day.
➢ Studies report behavioral changes within distances beyond the current (2019) restrictions,
suggesting “likely impacts to SRKWs even by the regulation-abiding boats.”
➢ Studies of orcas and other cetaceans find that the effect of vessel presence increases
with vessel numbers, particularly for three or more vessels (Williams et al 2002, Williams
et al 2009, Williams and Ashe 2007). A lower number of vessels would lead to lower levels
of disturbance.

Department of Fish and Wildlife 5

Addressing other sources
Shipping Private Boater Education & Enforcement (continued)
– ECHO (BC) and “Quiet Sound” (proposed, Washington): – PSP and DOL distributed messaging on rules to all
Commerce, WSF, and PSP are working with the Ports, licensed boaters in Washington, and the 2019 orca laws
NOAA, and others through the Washington Maritime Blue for boats are featured at top of DOL boating registration
alliance. Working groups: vessel operations, incentives, webpage
innovations, notification, monitoring, evaluation, and – WDFW Enforcement has increased patrols in order to
adaptive management. educate boaters and enforce the new rules.
– ECHO program in Canada has seen greater than 80% – Voluntary no-go zone (WA) and interim sanctuary zones
compliance with voluntary, seasonal slowdowns and (BC)
lateral displacements by shipping and towing sectors – Whale Warning Flag program (BC and WA)
through SRKW hotspots over past few years, resulting in
marked reduction in underwater noise levels Ferries
– Canada has started a transboundary discussion of the – WSF completed a fleet-wide noise study to establish noise
feasibility of modifying the Traffic Separation Scheme (aka ‘footprints’ for each vessel
shipping lanes) – A noise mitigation plan that identifies operational
– Whale Report Alert System (BC, recently expanded into methods to quiet vessels
Washington): facilitated by WSF, PSP, and Commerce. It is – WSF Electrification Plan, incentivized vessel construction
now adopted by Puget Sound Pilots, WA State Ferries, contracts to reduce engine noise
fast ferries, and local tug and tow operators and is under – Ecology partnering to retrofit one of WSF’s Jumbo Mark II
consideration by the U.S. Navy. ships with a hybrid propulsion system
Private Boater Education & Enforcement Navy
– Legislature adopted “Go-Slow” bubble for all boats and – Northwest Testing and Training protocols include new
increased distance regulations around SRKW restrictions on Navy’s use of sonar based on State
– Be Whale Wise- signs on docks, pamphlets, boat show feedback regarding measures to protect SRKW
booths, Shell gas station ads, etc. Oil Spills
– Soundwatch (WA) and Straitwatch (BC) on-water – Legislature passed a bill in 2019 to require tug escorts
education and monitoring – Interagency coordination on plans for spill response and
– Protection of SRKW included in State Parks’ mandatory deterrence of SRKW from affected areas
boater education curriculum
– Canada is investing $415k over 3 years into education and
awareness
– Safe, voluntary standards for boaters’ use of depth finders
to reduce interference with SKRW echolocation

Department of Fish and Wildlife 6

How did we land The committee recommends defining
every interaction with an SRKW as an

on the draft rules?

opportunity to disturb a whale. -WSAS

Limiting # of boats, ~4 hours per day of CWW

days, hours allowed Conservation Limited # of days per year
with SRKW unlikely to • Limit days and hours within
of permitted viewing
½ NM to provide
affect viability- many uninterrupted foraging
other species with • Precautionary Extra caution with calves
unrestricted viewing
80-90% reduction
Industry wanted
more viewing
Industry
throughout year opportunity Administration &
Days/times of high- • Economic viability and enforcement
small business impacts Avoid stopwatch,
recreational traffic to • Months, days, and time
• Avoid difficult-to-
enforce measures complex tracking
study sentinel role slots aligned to high
industry demand and counting
Hours aligned with
Avoid highly
high demand and
variable rules
general tour times
Straightforward

Department of Fish and Wildlife 7

 If the proposed rule directly limits the level of
activity in the industry (i.e., the number of tickets
that can be sold), this may result in revenue
SBEIS impacts that should be considered in the context
of this SBEIS. As described above, rule elements
that limit viewing of Southern Residents only,
• Existing best practices: no-
or that limit the geographic area where CWW
go zone, kayak positioning
activity may occur, will not limit overall CWW
and raft-up
activity because substitute viewing
• Unlikely to affect: number opportunities (both geographic and species-
of boats, days and hours based) are available.
with allowed SRKW viewing
closer than ½ NM
• May result in impacts:
kayak ½ mile launch If launches must be delayed and relocation to an
restriction alternate launch location is not logistically
possible, there is the potential that trips could be
cancelled, resulting in decreased activity and
reduced revenues for these businesses. However,
given the relatively infrequent presence of
Southern Residents in Washington’s inland
waters generally, tour launch delays are
unlikely to occur frequently.

Department of Fish and Wildlife 8

 Conservation

Public comment
•Limit days and hours
within ½ NM
•Precautionary

themes (10/21-12/5) Industry Administration

opportunity
• A partial draft was presented 12/4 & enforcement
•Months, days, •Avoid difficult-
• The full report includes all comments received and time slots
aligned to high
to-enforce
measures
during the comment period and at the hearing industry demand

Sentiment Number of comments

Support for the rules
4,086 (315 individual comments +1,489 Sentiment Number of comments
WEC letters, +1,586 petition signatories, +691 Opposition to both Options
CBD letters, +5 form letters representing A and B
213 (144 individual
repeated comments) comments +69 naturalist
letter signatories)
Support Option B
14 Positive value of
commercial whale watching
146 (77 individual
Support Option A (or
“Option A as filed”)
2,417 (191 individual comments +1,489 comments +69 naturalist
WEC letters, +691 CBD letters, +5 form letters) letter signatories)
Promoting a counter-
Promoting Option A
with additional
1,583 (94 individual comments +1,489 WEC proposal to Options A and B
29
restrictions letters)

Promoting a Redirecting focus to other

suspension of SRKW
2,382 (105 individual comments +1,586 issues such as prey
38
viewing petition signatories, +691 CBD letters) availability

Department of Fish and Wildlife 9

 Northwest Indian Fisheries
Commission: Focused on the
no-go zone, compliance
monitoring, and enforcement

Puget Sound Partnership:

Supported a modified Option B

San Juan County: Supported

Option B and focused on
compliance monitoring

The Port of Friday Harbor:

Supported limits, no-go when
SRKW are present, incentivizing
quieter vessels

Intergovernmental The Samish Indian Nation

and Will Hall, Mayor of

comments Shoreline: Modified Option A

Department of Fish and Wildlife 10

 Recommended adjustments
Section Original Recommended adjustment
WAC 220-460-010 -- Added definition for “Inland waters
of Washington”
WAC 220-460-090 -- Added section to define geographic
scope of SRKW viewing rules
WAC 220-460- Limited viewing in July- Removed “on Fridays, Saturdays,
120(2) Option A September to Friday- Sundays, and Mondays”
Monday
WAC 220-460- Detailed reporting Split into section for motorized
140(3)(b)(iv) requirements for vicinity vessels (iv) and nonmotorized vessels
instances outside (v) to improve clarity in requirements
permitted days/times

The full list of recommended adjustments is

available in the 12/4 Commission briefing packets.
Department of Fish and Wildlife 11
Rules for license holders to reduce
daily and cumulative impacts on SRKW
Variable Status quo Proposed rules
General Speed and distance Speed and distance rules must be followed; SRKW
rules in place (2019) rules apply in the inland waters of WA
Geographic Unrestricted, but Close the west side of San Juan Island to CWW
restrictions voluntary no-go zone vessels, allowing a 100-yard corridor for human-
on the west side of San powered vessels.
Juan Island
Human- Distance rules in place No launching within ½ nautical mile of SRKW; raft-
powered (2019) up requirement if SRKW are encountered; no
vessels positioning or paddling in the path of SRKW.

Compliance No requirements AIS requirement (2022); log and report each instance
and in the vicinity of SRKW; real-time reporting to Whale
reporting Report Alert System; WDFW training required.

Penalties Civil infraction (RCW Civil infractions with fines of up to $500 for violations
77.15.740) and criminal of both statutes, criminal charges remain an option
charges (77.15.815)

Department of Fish and Wildlife 12

Options A and B
Variable Option A: July-September (3 months) Option B: May-November (7 months)

SRKW July-September: 10 a.m.-12 p.m. and 3-5 July-September: 10 a.m.-12 p.m. and 3-5p.m.
viewing hours by p.m. Friday-Monday (as filed, but Friday-Monday
motorized CWW at recommended adjustment to daily viewing
closer than ½ nautical July-September)
mile allowed only N/A May-June: 10 a.m.-12 p.m. and 3-5p.m.
during these months, Saturday-Sunday
days, and times Oct.-November: 10 a.m.-12 p.m. and 2-4
p.m. Saturday-Sunday
Each company can view in one of these two Each company can view in one of these two
periods in a day. periods in a day.

Number of motorized July-September: Three July-September: Three

CWW vessels that can
be within ½ nautical
N/A October-November and May-June: One
mile of a group of
SRKW at once Zero if calf of less than 1 year Zero if calf of less than 1 year
(and/or with vulnerable whales, by (and/or with vulnerable whales, by
emergency rule) emergency rule)

Department of Fish and Wildlife 13

 Recommended adjustment:
daily viewing July-September

Options A & B
SRKW viewing by motorized CWW at closer than ½ NM
Two, two-hour viewing periods per highlighted day
Limits on # of motorized CWW per group of SRKW:
yellow=3
blue=1
Department of Fish and Wildlife 14
 Suspend Advisory Multiple public Option A: Option B: Advisory Multiple public Status Quo
Committee comments July- May- Committee comments
Variable Proposal L September November Proposal J
Months Unlimited
0 12 3 3 7 12 12
Days per Unlimited
0 7 4 4 (or 7- staff 4 July-Sept. 7 7
week recommended
2 May-June
change)
and Oct.-Nov.
Hours per 10am- 1 hour Unlimited, 45 Unlimited, 45 Unlimited,
0 4 4 4
day before sunset minutes in minutes in voluntary 45
vicinity at a time vicinity at a time minutes in
vicinity
Number of Unlimited,
0 1, if WDFW 1 3 3 July-Sept. 3 5
boats voluntary
and
1 May-June reduction to
Soundwatch
and Oct.-Nov. average of ~5
are not present
Number of N/A N/A Unlimited
0 0 in low 0 w/ calf, 0 w/ calf 0 w/ calf
boats visibility pregnant and
(special)
0 with vuln. 0 with vuln.
vuln. whales, 0 in whales, by whales, by
low visibility emergency rule emergency rule
Geographic All areas West side of SJI West side of SJI West side of SJI West side of SJI West side of SJI West side of SJI West side of SJI
when SRKW are voluntary
present
Compliance N/A AIS, WRAS, AIS, WRAS, AIS, WRAS AIS, WRAS WDFW WDFW, whale Voluntary
WDFW, whale WDFW flag
flag

Putting the proposal in context

Department of Fish and Wildlife 15
Effective dates for WAC 220-460
File on 12/23/2020

Effective on 1/23/2021 Effective on 5/1/2021

• Definitions (010) • Compliance and
• License administration (020- reporting (140)
080)
• E-rule to delay 140(1)
• SRKW rules (090-130)
AIS requirement to
• Penalties (150)
1/2022
• Severability (160)
• E-rule to cover 1/1-1/23
• E-rule to delay 020(1)
requirement to have a license
in order to operate until 3/1

Department of Fish and Wildlife 16

Alternative Motion Language
Option B with staff’s recommended adjustments:
➢ I move to adopt WAC chapter 220-460 that is included in Option B with all proposed adjustments presented by
staff in the Dec. 4 commission materials.
If a commissioner wants to move to adopt Option A with 3 motorized commercially whale watch vessels
allowed daily during July through September.
➢ I move to adopt WAC chapter 220-460 that is included in Option A with all proposed adjustments presented by
staff in commission materials for the Dec. 4 meeting.
If a commissioner wants to move to adopt Option A with 3 motorized commercially whale watch vessels
allowed from Friday through Monday during July through September:
➢ I move to adopt WAC chapter 220-460 that is included in Option A with adjustments proposed by staff to
sections, except for the proposed adjustment to WAC 220-460-120(2), so that the text “on Fridays, Saturdays,
Sundays, and Mondays” will not be removed.
If a commissioner wants to move to adopt Option A with only 1 motorized commercial whale watch vessel
allowed from Friday through Monday during July through September:
➢ I move to adopt WAC chapter 220-460 that is included in Option A with adjustments proposed by staff to
sections, except for the proposed adjustment to WAC 220-460-120(2), so that the text “on Fridays, Saturdays,
Sundays, and Mondays” will not be removed.
➢ And I further move to amend the Option A language in WAC 220-460-110(1) to change the language from: “It is
unlawful for more than three motorized commercial whale watching vessels at a time to be within the vicinity of
any group of southern resident killer whales.”; To “It is unlawful for more than one motorized commercial whale
watching vessel at a time to be within the vicinity of any group of southern resident killer whales.”

A second, separate motion regarding the policy statement is:

I move to approve the Washington Fish and Wildlife Commission Policy Statement “Washington Fish and
Wildlife Commission Policy Statement on the recovery of Southern Resident Killer Whales and WDFW’s
commercial whale watching rules” as presented by staff.

Department of Fish and Wildlife 17

 Staff Acknowledgement: Nate Pamplin, Tom McBride,
Nelson Falkenburg, Chalee Batungbacal (Director’s
Office), Hannah Anderson and Jessica Stocking (Wildlife
Diversity), Amy Dona (AGO), Kristin Nielsen, Cheri
Rakevich, Peter Vernie, Ben Power, and formerly
Michele Culver (TFM), Lisa Wood (SEPA), Captain Myers,
Captain Anderson, Sergeant Kimball, and Sergeant Russ
Mullins (Enforcement), and several others who have
been tracking this process and offering support as
needed, including Dir. Susewind, Deputy Dir. Windrope,
R6 Dir. Larry Phillips, and R4 Dir. Brendan Brokes

Partner Acknowledgement: Advisory Committee

members, tribes and intergovernmental partners, many
other organizations and members of the public who
have weighed in to advise the process over the last year

Next steps?
Julie.Watson@dfw.wa.gov

Department of Fish and Wildlife