ByRepresentatives Berry, Timmons, Reed, Peterson, Fitzgibbon, Bateman, Ramel, Senn, Ryu, Leavitt, Doglio, Macri, Simmons, Duerr, Springer, Stonier, Pollet, Kloba, Donaghy, and Ormsby

Prefiled 01/05/23.Read first time 01/09/23.Referred to Committee on Agriculture and Natural Resources.

AN ACT Relating to protecting southern resident orcas from vessels; amending RCW 77.15.740, 77.65.615, and 77.15.815; and prescribing penalties.

(a) Cause a vessel or other object to approach, in any manner, within ((three hundred))1,000 yards of a southern resident orca ((whale));

(b) Position a vessel to be in the path of a southern resident orca ((whale)) at any point located within ((four hundred))1,000 yards of the whale. This includes intercepting a southern resident orca ((whale)) by positioning a vessel so that the prevailing wind or water current carries the vessel into the path of the whale at any point located within ((four hundred))1,000 yards of the whale;

(d))) Fail to disengage the transmission of a vessel that is within ((three hundred))400 yards of a southern resident orca ((whale));

(((e)))(d) Cause a vessel or other object to exceed a speed greater than seven knots over ground at any point located within ((one-half nautical mile (one thousand thirteen yards)))1,000 yards of a southern resident orca ((whale)); or

(2) An operator of a vessel that has entered within 1,000 yards of a southern resident orca must immediately safely reposition the vessel to be 1,000 yards or farther from any southern resident orca.

(a) Operating a federal government vessel in the course of official duties, or operating a state, tribal, or local government vessel when engaged in official duties involving law enforcement, search and rescue, or public safety;

(b) Operating a vessel in conjunction with a vessel traffic service established under 33 C.F.R. and following a traffic separation scheme, or complying with a vessel traffic service measure of direction. This also includes support vessels escorting ships in the traffic lanes, such as tug boats;

(c) Engaging in an activity, including scientific research, pursuant to the conditions of a permit or other authorization from the national marine fisheries service ((and))or the department;

(d) Lawfully engaging in a treaty Indian or commercial fishery that is actively setting, retrieving, or closely tending fishing gear. Commercial fishing vessels in transit are not exempt from subsection (1) of this section;

(e) Conducting vessel operations necessary to avoid an imminent and serious threat to a person, vessel, or the environment, including when necessary for overall safety of navigation and to comply with state and federal navigation requirements; or

(f) Engaging in rescue or clean-up efforts of a beached southern resident orca ((whale)) overseen, coordinated, or authorized by a volunteer stranding network.

(((3)))(4) For the purpose of this section, "vessel" includes aircraft while on the surface of the water, and every description of watercraft on the water that is used or capable of being used as a means of transportation on the water. However, "vessel" does not include inner tubes, air mattresses, sailboards, and small rafts, or flotation devices or toys customarily used by swimmers.

(((4)))(5)(a) A violation of this section is a natural resource infraction punishable under chapter 7.84 RCW and carries a fine of ((five hundred dollars))$500, not including statutory assessments added pursuant to RCW 3.62.090.

(b) A person who qualifies for an exemption under subsection (((2)))(3) of this section may offer that exemption as an affirmative defense, which that person must prove by a preponderance of the evidence.

(((5) The enforcement actions required of the department from this section are subject to the availability of amounts appropriated for this specific purpose.))

(1) A commercial whale watching business license is required for commercial whale watching businesses. The annual fee for a commercial whale watching business license is ((two hundred dollars))$200 in addition to the annual application fee of ((seventy-five dollars))$70.

(2) The annual fees for a commercial whale watching business license as described in subsection (1) of this section must include ((fees))a fee of $200 for each motorized or sailing vessel ((or vessels as follows:

(d) One hundred one to one hundred fifty passengers, one thousand eight hundred twenty-five dollars; and

(3) The holder of a commercial whale watching business license for motorized or sailing vessels required under subsection (2) of this section may ((substitute the vessel designated))designate an additional vessel on the license((, or designate a vessel if none has previously been designated,)) if the license holder:

(b))) Submits to the department an application that identifies the ((currently designated vessel, the)) vessel proposed to be designated((,)) and any other information required by the department; and

(((c)))(b) Pays to the department a fee of ((thirty-five dollars))$130 and an application fee of ((one hundred five dollars))$70.

(4) ((Unless the business license holder owns all vessels identified on the application described in subsection (3)(b) of this section, the department may not change the vessel designation on the license more than once per calendar year.

(5))) A commercial whale watching operator license is required for commercial whale watching operators. A person may operate a motorized or sailing commercial whale watching vessel designated on a commercial whale watching business license only if:

(b) The person is designated as an operator on the underlying commercial whale watching business license.

(((6)))(5) No individual may hold more than one commercial whale watching operator license. An individual who holds an operator license may be designated as an operator on an unlimited number of commercial whale watching business licenses.

(((7)))(6) The annual fee for a commercial whale watching operator license is ((one hundred dollars))$100 in addition to an annual application fee of ((seventy-five dollars))$25.

(7) A paddle tour business license is required for businesses conducting paddle tours in waters of Washington state inhabited by marine mammals. The annual fee for a paddle tour business license is $200 in addition to the annual application fee of $70.

(8) A person may conduct ((commercial whale watching via)) guided ((kayak))paddle tours in waters inhabited by marine mammals only if:

(b) The person is designated as a ((kayak)) guide on the underlying ((commercial whale watching))paddle tour business license.

(9) No individual may hold more than one ((kayak))paddle guide license. An individual who holds a ((kayak))paddle guide license may be designated on an unlimited number of ((commercial whale watching))paddle tour business licenses.

(10) The annual fee for a ((kayak))paddle guide license is $25 in addition to an annual application fee of $25.

(11) The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.

(a) "Commercial whale watching" means the act of taking, or offering to take, passengers aboard a motorized or sailing vessel ((or guided kayak tour in order)) to view marine mammals in their natural habitat for a fee.

(b) "Commercial whale watching business" means a business that engages in the activity of commercial whale watching.

(c) "Commercial whale watching business license" means a department-issued license to operate a commercial whale watching business.

(d) "Commercial whale watching license" means a commercial whale watching business license((,))or a commercial whale watching operator license((, or a kayak guide license)) as defined in this section.

(e) "Commercial whale watching operator" means a person who operates a motorized or sailing vessel engaged in the business of whale watching.

(f) "Commercial whale watching operator license" means a department-issued license to operate a commercial motorized or sailing vessel on behalf of a commercial whale watching business.

(g) "Commercial whale watching vessel" means any vessel that is being used as a means of transportation for individuals to engage in commercial whale watching.

(h) "((Kayak))Paddle guide" means a person who conducts guided ((kayak)) tours on behalf of a ((commercial whale watching))paddle tour business.

(i) "((Kayak))Paddle guide license" means a department-issued license to conduct commercial guided ((kayak))paddle tours on behalf of a ((commercial whale watching))paddle tour business.

(k) "Paddle tour" means the act of guiding or offering to take people aboard nonmotorized or human-powered vessels, such as kayaks or paddle boards, on a trip, tour, or guided lesson in waters inhabited by marine mammals for a fee.

(12) The residency and business requirements of RCW 77.65.040 (2) and (3) do not apply to Canadian individuals or corporations applying for and holding Washington commercial whale watching licenses defined in this section.

(13) The license and application fees in this section ((are waived for calendar years 2021 and 2022))may be waived for organizations whose relevant commercial whale watching or marine paddle tour activities are solely for bona fide nonprofit educational purposes.

(1) A person is guilty of unlawfully engaging in commercial whale watching in the second degree if the person:

(b) Violates any department rule regarding ((the operation of a)) commercial whale watching ((vessel near a southern resident orca whale)).

(2) A person is guilty of engaging in commercial whale watching in the first degree if the person commits the act described in subsection (1) of this section and the violation occurs within ((one year of the date of a prior conviction under this section))five years of any of the following:

(b) The date of a finding of guilt or plea of guilty pursuant to an amended information, criminal complaint or citation, or infraction for any violation that was originally charged as a violation of this section, regardless of whether the imposition of the sentence is deferred or the penalty is suspended; or

(c) The date of any disposition of a case arising from an act originally charged as a violation of this section, whereby the offender enters into a disposition that continues or defers the case for dismissal upon the successful completion of specific terms or conditions.

(b) Unlawful commercial whale watching in the first degree is a gross misdemeanor. ((Upon conviction))In addition to the appropriate criminal penalties, the director shall ((deny applications submitted by the person for a commercial whale watching license or alternate operator license for two years from the date of conviction))revoke any operator license, business license, or both, and order a suspension of the person's privilege to engage in commercial whale watching for two years.

(4) A person is guilty of unlawfully engaging in a paddle tour in the second degree if the person:

(5) A person is guilty of unlawfully engaging in a paddle tour in the first degree if the person commits an act described in subsection (4) of this section and the violation occurs within five years of the date of any of the following:

(b) The date of a finding of guilt or plea of guilty pursuant to an amended information, criminal complaint or citation, or infraction for any violation that was originally charged as a violation of this section, regardless of whether the imposition of sentence is deferred or the penalty is suspended; or

(b) Unlawful engagement in a paddle tour in the first degree is a gross misdemeanor. In addition to appropriate criminal penalties, the director shall revoke any paddle guide license, business license, or both, and order a suspension of the person's privilege to conduct paddle tours in marine waters for two years.