In 2019, the Legislature required the Department of Fish and Wildlife (DFW) to implement a commercial whale watching license. License and application fees are based on the type of vessel and number of passengers. The application fee is $75. The annual license fee is $200 and the annual per vessel fees vary based on the number of vessels and whether the vessels are motorized or human-powered.
Commercial whale watching without a permit, or violating DFW rules regarding commercial whale watching, is a misdemeanor, and doing so within one year of the date of a prior conviction is a gross misdemeanor. Upon conviction of a gross misdemeanor, DFW must deny applications for a commercial whale watching license or alternate operator license for up to two years from the conviction.
The Legislature directed DFW to adopt rules for holders of a commercial whale watching license 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 rules took effect on January 23, 2021 and establish licensing, training, reporting, and compliance monitoring procedures, including reporting of southern resident orca whale sightings. The training and reporting requirements go into effect May 1, 2021. The rules also set limitations on commercial whale watching operators viewing southern resident orca whales, including:
A commercial whale watching license is required for commercial whale watching operators viewing southern resident orca whales. The definition of commercial whale watching is amended to mean the act of taking, or offering to take, passengers aboard a vessel in order to view southern resident orca whales in their natural habitat for a fee. Commercial whale watching operators includes commercial vessels and kayak rentals that are engaged in the business of southern resident orca whale watching. A commercial whale watching vessel means any vessel that is being used as a means of transportation for individuals to engage in commercial southern resident orca whale watching.
PRO: This bill will stop southern resident orca whales from being watched by commercial whale watch operators. Commercial whale watch operators will be able to watch grey whales, blue whales, and transient orcas. Due to lost revenue because of the pandemic and in part due to negative publicity over this issue, commercial operators want the opportunity to opt out of watching southern resident orcas. Some commercial whale watch operators would rather go look at other marine mammals flourishing in the Salish Sea. The industry provides vital income to the state's ecotourism sector as well as much needed and critical scientific data on southern resident orca whales. There needs to be a closer look at the impact of private boaters. There is an important sentinel role for commercial whale watch operators that helps recreational boaters know how, when, and where to keep their distance. This bill will allow those operators viewing southern resident orca whales to continue to be out on the water, while also allowing other commercial operators viewing other marine mammals to be on the water. As salmon continues to decline, southern resident orca whales are infrequent visitors and commercial whale watch operators are seeing them very few times. Opting out from viewing southern resident orca whales is something many organizations asked the industry to do and this bill would allow operators to do it.
CON: The licensing system is designed to reduce noise and disturbance around the southern resident orca whales. This bill will allow operators to watch southern resident orca whales incidentally and it would be up to enforcement to prove their intent. The concern with this bill is that it will complicate the process in terms of licensing. The whales need our protection and relying only on enforcement in a system where everyone does not have a license is not a good way to set up a regulatory scheme. This bill will undermine and undo taxpayer-funded work that went into developing and finalizing the rules to give the critically endangered orca more uninterrupted time to find scarce food, socialize, travel, and raise their calves. If industry has concerns about fees, then the bill should address those concerns. Fee concerns should be addressed in a way that does not undermine protections for southern resident orca whales. These compromised rules were negotiated by all parties and no one was happy, which means the rules were a true compromise. This bill would undo the no go zone on the west side of San Juan Island which provides critical foraging, socializing, and resting habitat for the southern resident orca whales. The orca moms, aunts, and calves deserve the protection of the recently adopted rules from commercial whale watching.
OTHER: This bill proposes to alter the program just as it takes effect and poses some challenges, including how to identify operators who elect to view southern resident orca whales and operators who do not but view incidentally. The rules radically impact the kayaking industry and the industry had no voice in the process. The bill would allow commercial whale watching operators who are not licensed and who casually encounter southern residents to avoid reporting such sightings to the alert system that notifies the shipping sector of whale sightings in real time.