Category: Licensing and Permits
Published: September 23, 2020
Author(s): Ross Strategic
In 2019, the Washington Department of Fish and Wildlife (WDFW) was directed by the Washington State Legislature (Legislature) to develop a licensing program and rules for commercial whale watching. The purpose of establishing regulations for licensing commercial whale watching vessels is to ensure sustainable commercial whale watching practices that reduce the daily and cumulative impacts of vessel noise and disturbance on the endangered Southern Resident Killer Whales (SRKWs or Southern Residents). The draft programmatic environmental impact statement (DEIS) evaluates action alternatives by examining all areas of probable significant adverse environmental impact.
The SRKWs are the only known resident population of orcas in the United States. They spend spring and summer months primarily in the inland marine waters of Washington and British Columbia. In the winter, they are typically in the coastal waters of the Pacific Ocean between California and British Columbia. Federal and Washington State laws list SRKWs as endangered. Vessels, including commercial whale watching vessels, create noise and disturbance that can elicit behavioral disruptions such as reduced foraging behaviors, changes in swimming patterns, increased surface-active behaviors and, along with other stressors, this can threaten their viability in Washington waters.
The licensing program is considered a “non-project action” under the State Environmental Policy Act (SEPA). Non-project actions include the adoption of plans, policies, programs, or regulations containing standards that will guide future actions. The DEIS analysis of significant environmental impacts on SRKWs is based on the best-available science resources identified by an independent panel of the Washington State Academy of Sciences. The DEIS incorporates recommendations and suggestions from public scoping comments and the Commercial Whale Watching Licensing Program (CWWLP) Advisory Committee recommendations.
The DEIS evaluates four alternatives for a commercial whale watching licensing program in Washington, including a No Action Alternative. The alternatives range in how much they restrict commercial whale watching (CWW) activity and therefore how much they are anticipated to reduce exposure of SRKWs to CWW vessel noise and disturbance. The final action chosen by WDFW may not be identical to any single alternative; after reviewing the results of the DEIS, WDFW may choose a hybrid that combines more and less restrictive expressions of the alternatives to best meet its legislative mandate.
Alternative 1 would reduce SRKWs’ exposure to CWW vessel noise and disturbance the most out of all the alternatives and would likely result in the most benefits to SRKWs. However, it would place the most extreme restrictions on CWW operations (especially at the low end of the ranges). It contains the following components:
- Days/Hours of CWW and SRKW Viewing: In this alternative, all CWW operations would be restricted seasonally for a period of 8 to 11 months by limiting all CWW operations to a 0- to 4-hour per day window and to 0 to 2 days per week. During the other 2 to 4 months of the year, SRKW viewing only (not CWW operations overall) would be limited to a 0- to 4-hour per day window and to 0 to 2 days per week.
- Vessels, Time, and Locations for SRKW Viewing: In this alternative, 0 to 2 CWW vessels would be allowed to view SRKWs at a time; CWW vessels (not including kayaks) would be limited to spending 0 to 15 minutes in the vicinity of SRKWs; and multiple geographic areas would be closed to CWW (except for safety reasons) when SRKWs are in the vicinity. The closed geographic areas would include the west side of San Juan Island (the current voluntary no-go zone that SRKWs frequently use for foraging), and other agreed upon geographic areas. Any of these limitations could be implemented on a seasonal basis for 8 to 11 months or year-round.
- Sonar/echolocation: In this alternative, CWW vessels that have sonar or echolocation devices would be required to turn those devices off, to standby, or tune them to 200 kHz mode when in the vicinity of SRKWs, unless there are safety concerns that require their use.
- Reporting: CWW operators would be required to report on the presence and location of SRKW to WDFW Enforcement and/or provide documentation of their observations of SRKWs, such as logs of SRKW sightings, viewing, and other on-the-water observations.
- Kayak-specific rules: In addition to meeting the requirements that apply to all CWW operators, kayak tours would be required to adhere to some or all of the voluntary Kayak Education Leadership Program (KELP) best practices, which provide a code of conduct for paddlers to assist in compliance with federal vessel regulations, as well as other restrictions.
Alternative 2 includes moderate limitations on commercial whale watching to reduce potential noise and disturbance impacts on SRKWs. It contains the following components:
- Days/Hours of CWW and SRKW Viewing: In this alternative, all CWW operations, including SRKW viewing, would be restricted seasonally for a period of 4 to 7 months by limiting CWW operations to a 4-to 8-hour per day window and to 3 to 5 days per week. WDFW may decide to implement the SRKW-viewing limitations either year-round or for 4 to 7 months.
- Vessels, Time, and Locations for SRKW Viewing: In this alternative, 3 to 4 CWW vessels would be allowed to view SRKWs at a time; CWW vessels (not including kayaks) would be limited to spending 16 to 45 minutes in the vicinity of SRKWs; and multiple geographic areas would be closed to CWW (except for safety reasons) when SRKWs are in the vicinity. The closed geographic areas would include the west side of San Juan Island (the current voluntary no-go zone that SRKWs frequently use for foraging), and at least one other agreed upon geographic area. Any of these limitations could be implemented on a seasonal basis for 4 to 7 months instead of year-round.
- Reporting: CWW operators would be required to report SRKW locations to WDFW Enforcement when private vessels are in the presence of SRKWs (e.g., when 1 or more private vessels are in the vicinity or only when larger groups of private vessels are in the vicinity).
- Kayak-specific rules: In addition to meeting the requirements that apply to all CWW operators, kayak tours would need to adhere to some or all of the voluntary KELP best practices outlined in the Kayaker Code of Conduct.
Alternative 3 is a less restrictive set of limitations on commercial whale watching and could potentially reduce noise and disturbance impacts to SRKWs. This alternative includes more restrictions on commercial whale watching than the status quo. It contains the following components:
- Days/Hours of CWW and SRKW Viewing: In this alternative, all CWW including SRKW viewings operations would be restricted seasonally for a period of 1 to 3 months by limiting CWW operations to 6 days per week and operating hours to the period from 1 to 2 hours after sunrise to 1 to 2 hours before sunset. WDFW may decide to implement the SRKW-viewing limitations either year-round or for 1 to 3 months.
- Vessels, Time, and Locations for SRKW Viewing: In this alternative, 5 to 10 CWW vessels would be allowed to view SRKWs at a time; CWW vessels (not including kayaks) would be limited to spending 46 to 60 minutes in the vicinity of SRKWs; and the west side of San Juan Island would be closed to CWW when SRKWs are in the vicinity. Any of these limitations could be implemented on a seasonal basis for 1 to 3 months instead of year-round.
- Reporting: In this alternative, CWW operators would only need to report emergency situations (e.g., SRKW health or injury problems, or incidents resulting in “take”) to WDFW Enforcement; no other reporting on SRKW presence, location, and/or on the water behavior would be required.
Alternative 4, or the No Action Alternative, represents current limitations in effect for commercial whale watching operators and protection of SRKW. The No Action Alternative provides a baseline for comparing the potential impacts and mitigation needs associated with any action WDFW takes in implementing rules for commercial whale watching.
- Days/Hours of CWW and SRKW Viewing: In this No Action Alternative, there are no existing limits on what seasons, days, and/or hours of the day that commercial whale watching operators may operate, or the hours/times that they may view SRKWs. Currently, the number of vessels around orcas varies during the season, and the peak number of vessels can be much higher than the annual average. In 2019, the highest number of vessels around orcas occurred in July, when there were as many as 26 private recreational vessels, 18 motorized CWW vessels, and 13 kayaks. Most CWW trips for U.S.-based PWWA members currently occur between 9:00 AM and 6:00 PM, but some operators offer evening or sunset tours that last as late as 9:30 PM.
- Vessels, Time, and Locations for SRKW Viewing: In this alternative, there are no limits of number of vessels or mandatory limits on SRKW viewing time, but vessels follow best practices for amount of time. PWWA’s best practice is 60 minutes unless there are more than 9 vessels within 1km, in which case best practice is 30 minutes. Be Whale Wise guideline limits viewing time to 30 minutes. This alternative does not have any restricted areas but the Be Whale Wise and PWWA best practices still stand.
- Sonar/echolocation: In this alternative, there are no requirements, but vessels may follow PWWA best practices to turn off sonar and echolocation devices when in the vicinity.
- Reporting: There are no current requirements for reporting information related to SRKWs to WDFW. Some CWW operators voluntarily report SRKW presence and location to WDFW Enforcement.
- Kayak-specific rules: In this alternative, there are no kayak-specific regulations except for the voluntary KELP best practices.
Adaptive management is a systematic approach for improving resource management by learning from management outcomes and it is an important cross-cutting component of EIS alternatives. WDFW is committed to developing an adaptive management strategy that will allow the CWWLP to adapt to new information about the status of SRKW and effectiveness of the CWWLP as it becomes available through monitoring and evaluation. The strategy will be in place when the CWWLP is implemented and WDFW will complete an analysis and report to the governor and the Legislature on the effectiveness of and any recommendations for changes to the whale watching rules by November 30, 2022, and every two years thereafter until 2026. Any significant changes to the nature and extent of the CWWLP rules as a result of adaptive management, including any potential changes to components in the final action, would likely be made during this review cycle.
Summary of Impacts
The final rules WDFW implements for the CWWLP—its final action—must balance the need to reduce the daily and cumulative impacts of vessel noise and disturbance on SRKWs and consider the economic viability of commercial whale watching license holders. The following table summarizes the conclusions of the analysis of anticipated environmental impacts and the likelihood of the alternatives meeting WDFW’s mandate as they are currently constructed.
The DEIS recommends that WDFW select components from multiple alternatives to both support sustainable commercial whale watching opportunities and reduce the daily and cumulative impacts on commercial whale watching from vessel noise and disturbance.
Mitigation measures are actions that can reduce or eliminate adverse environmental impacts associated with all alternatives other than no action. The intended environmental benefit of the mitigation measures is to further decrease the daily and cumulative impacts of vessel noise and disturbance on SRKWs and promote their overall wellbeing, either directly or indirectly. WDFW is considering and may implement the following mitigation measures along with the final action:
- The influence of commercial whale watching vessels on recreational boaters: There is currently little published empirical evidence of the influence, sentinel, or magnet effect of CWW vessels. However, WDFW could evaluate the extent and ways in which CWW vessels may affect recreational vessel behavior and how this could factor into the CWWLP. For example, if peer-reviewed research indicates that CWW operator presence and/or actions such as using whale warning flags contribute to changes in recreational boater activity that alter vessel noise and disturbance impacts on orcas, WDFW could consider adjusting CWW vessel limits as part of its adaptive management program.
- The role of commercial whale watching vessels in monitoring and communicating SRKW status: CWW operators spend time in the vicinity of SRKWs and are familiar with their behavior patterns. Operators can contribute to SRKW management and data collection by identifying and reporting health or injury concerns or communicating animal status to researchers. These monitoring and communications activities go beyond the specific reporting requirements that WDFW is considering as part of the DEIS alternatives. Similar to the influence of CWW on recreational vessels, this mitigation measure will be considered as part of WDFW’s adaptive management program and evaluated over time.
- The use of automated identification system (AIS) on commercial whale watching vessels: AIS is a tracking system that uses transceivers to provide information such as vessel identification, position, course, and speed. The use of AIS on CWW vessels could allow increased enforcement and compliance monitoring of CWW vessels as it would inform WFDW Enforcement about vessel density around SRKWs. WDFW is considering the impacts the use of AIS may have on SRKW management and whether specific AIS requirements might be part of the CWWLP. If WDFW established requirements, the spatial patterns in vessel locations and densities could help answer scientific questions and enhance conservation efforts.
- SRKW Education: Education is essential to promoting compliance with any new regulations and achieving a reduction in vessel impacts to the whales. SRKW and other marine mammal education programs already exist and play an integral role in reducing disturbance from all types of vessels. Two additional education-based mitigation measures that could enhance conservation are: 1) SRKW-viewing qualification program that would require CWW operators to demonstrate knowledge of SRKWs and information needed to comply with CWWKP rules and 2) an SRKW curriculum for members of the public and CWW clientele to increase awareness of SRKWs and how to contribute to their recovery.
Following the publication of the DEIS on September 23, 2020, there will be a 30-day public comment period, during which reviewers have the opportunity to comment on the accuracy and completeness of the environmental analysis, the methodology used in the analysis, and the need for additional information and/or mitigation measures, so that improvements to the EIS can be made before it is finalized. Comments can be submitted through an online form available on the WDFW SEPA website and the CWWLP Advisory Committee website.
A 2-hour virtual public meeting is scheduled on Monday, October 19, 2020, from 6:00PM to 8:00PM PDT. This meeting is an additional opportunity for members of the public to share comments on the DEIS and WDFW’s simultaneous rulemaking process regarding commercial whale watching of SRKWs. Meeting details will be posted online on WDFW’s website: https://wdfw.wa.gov/species-habitats/at-risk/species-recovery/orca/rule-making.
The final programmatic environmental impact statement (FEIS) on the Commercial Whale Watching Licensing Program will be released in December 2020, which will include WDFW’s preferred alternative. The DEIS reader should note the SEPA EIS process parallels (and was precipitated by and meant to inform) Washington’s rulemaking process, which requires WDFW to draft and ultimately file final rules with the state’s Code Reviser. WDFW’s preferred CWWLP alternative will be proposed to the WDFW Commission for action on December 18, 2020. The Commission will decide on a final rule, which will likely become effective 31 days after it is filed with the Code Reviser and published in the Register.