Commercial whale watching rulemaking

Orca breaching
Ken Rea

In spring 2019, the Washington Legislature passed Senate Bill 5577: a bill concerning the protection of Southern Resident Orca Whales from vessels, which developed a license for commercial whale watching and directed the Washington Department of Fish and Wildlife (WDFW) to administer the licensing program and develop rules for commercial viewing of Southern Resident Killer Whales (SRKW). (See RCW 77.65.615 and RCW 77.65.620)

The purpose of creating rules for commercial whale watching of SRKW is to reduce the impacts of vessel noise and disturbance on the whales' ability to forage, rest, and socialize while enabling sustainable whale watching

Draft rule language was developed in a year-long process and was shared on Oct. 21, 2020 for public comment and consideration by the Fish and Wildlife Commission (Commission). 

WDFW filed two options for consideration by the public and the Commission. The two proposals are available below under Options Considered. WDFW accepted public comment on the proposed rules from October 21 - December 5, 2020. Comments received by November 28 were summarized for presentation to the Fish and Wildlife Commission at their December 4 briefing and hearing on the proposed rules. However, WDFW continued to accept and consider comments received through December 5, 2020.

The Commission held a special meeting to further discuss the rules and the full spectrum of public comment on December 15, and made a decision to adopt rules at their December 18 conference call. The final rules adopted by the Commission establish licensing processes and establish rules for license holders' viewing of SRKW in order to reduce daily and cumulative impacts of whale watching on SRKW:

  • The rules do not restrict the viewing of other whales or marine mammals, but set a three-month July-September season for viewing of SRKW by motorized commercial whale watching vessels at closer than one-half nautical mile.
  • From July-September, motorized commercial whale watching of SRKW is permitted daily during two, two-hour periods (10 a.m.- 12 p.m. and 3 -5 p.m.). During these times, there is a limit of three motorized commercial whale watching vessels per group of SRKW. 
  • The rules formally establish the ‘no-go’ zone on the west side of San Juan Island for motorized commercial whale watching vessels, allowing a 100-yard corridor along the shore for commercial kayak tours. The no-go zone applies year-round regardless of SRKW presence. The no-go zone remains voluntary for vessels not engaging in commercial whale watching operations.
  • The rules establish training, reporting, and compliance monitoring procedures, including real-time reporting of SRKW sightings to the Whale Report Alert System. The training and reporting requirements go into effect May 1, 2021. 
  • The rules also lay out licensing processes, definitions, and penalties, and they define rules that formalize best practices for kayak tours near SRKW, including setting a restriction that tours cannot launch within one-half nautical mile of SRKW.

The final rules were filed on December 23, 2020 and went into effect January 23, with the exceptions of sections 020 describing the license application process and requiring a license to operate (effective May 1, 2021) and section 140 specifying compliance, training, and reporting requirements (effective May 1, 2021). WDFW also filed an emergency rule that restricted commercial viewing of SRKW to one-half nautical mile from January 1-23, 2021, which covered the gap between January 1 and the permanent rules going into effect. Besides adopting rules for commercial whale watching, the Commission also discussed but ultimately did not adopt a draft policy statement on SRKW recovery.

Read more about the importance of reducing vessel noise and disturbance, plus other key threats to SRKW including contaminants and insufficient prey, in the final report posted on the Governor's Southern Resident Orca Task Force website.

Advisory Committee

In October 2019, WDFW solicited applicants for an ad-hoc advisory committee to help develop these rules and processes. The committee met from January through July 2020. To view the meeting summaries and materials, visit the Commercial Whale Watching Licensing Program Advisory Committee page.

Science Panel

RCW 77.65.620 requires WDFW to use best available science to develop the rules for commercial viewing of SRKW and to adaptively manage the rules over time. WDFW partnered with the Washington State Academy of Sciences to convene an independent panel of scientists to review the science and provide scientific input to the Advisory Committee and WDFW throughout the rulemaking process. 

SEPA Environmental Impact Statement

WDFW conducted SEPA Environmental Impact Statement (EIS) process to inform the rulemaking. This state environmental review process focuses on public engagement in the scoping of options and review of alternatives under consideration. 

Economic Analysis

RCW 77.65.620 required WDFW to consider the economic viability of license-holders in the development of the rules for commercial viewing of SRKW. There were two components of the economic analysis:

  • Economic viability analysis (August 2020): This report assessed how various management options would affect the industry's ability to remain viable.
  • Economic impact analysis (October 2020): The small business economic impact statement (SBEIS) assessed whether the proposed rules would have more than minor costs that disproportionately affect small businesses and explored cost mitigation strategies.

Public Engagement

There were multiple ways partners and members of the public participated in the rule-making process.

  • The public had many opportunities throughout 2020 to provide comment, including during:

    • the Advisory Committee meetings

    • the Washington State Academy of Sciences science workshop April 27 and stakeholder workshop May 6

    • the SEPA scoping period May 18-June 8 and public meeting May 28

    • the draft SEPA Environmental Impact Statement public comment period Sept. 23- Oct. 23 and public meeting Oct. 19

    • a short Oct. 1-8 comment period on pre-filed draft rules, with public comment meetings Oct. 7 and 8

    • the official public comment period on the proposed rules October 21-December 5

    • the Fish and Wildlife Commission public hearing on the proposed rules December 4

  • The public attended the December Fish and Wildlife Commission meetings with commercial viewing of Southern Resident killer whales on the agenda. The Commission had a briefing and hearing on the proposed rules Friday, Dec. 4, discussed the draft rules during a special meeting Tuesday, Dec. 15, and made a decision to adopt rules during a web conference Friday, Dec. 18. 

There are plenty of ways you can continue to support SRKW recovery, including:

  • Learn about what you can do to help the Southern Resident orcas, and Be Whale Wise if you spend time on the water in killer whale habitat, which extends throughout Puget Sound, the Strait of Juan de Fuca, British Columbia, and the outer coast from California to Alaska.

  • Sign up for our killer whale mailing list to keep up to speed on the process and opportunities to share your ideas and feedback.
 

Options Considered

There were two options under consideration by the Fish and Wildlife Commission. Public comment and economic analysis of these options informed the Commission's final decision. 

  • Option A included a three-month July-September season for motorized commercial whale watching of SRKW with two, two-hour periods per day where viewing SRKW would be allowed at closer than one-half nautical mile (limit of 3 motorized commercial whale watching vessels per group of SRKW; 0 with calves). In the final stages of drafting the proposed rule, text that would limit viewing to Friday-Monday was inadvertently included in Option A. WDFW solicited comments on Option A as filed, but also accepted comments on the possibility of daily viewing during those months.
  • Option B added a shoulder season of two months on either side (May/June and October/November) of the main season. The shoulder season included Saturday-Sunday viewing only (limit of 1 motorized commercial whale watching vessel per group of SRKW), and the main summer season viewing (July-September) was Friday-Monday (limit of 3 motorized commercial whale watching vessels per group of SRKW; 0 with calves). For days that allow viewing of SRKW, there were two, two-hour periods.
  • Both options proposed formalizing the ‘no-go’ zone on the west side of San Juan Island (currently voluntary) for motorized commercial whale watching vessels (100-yard corridor along the shore for kayaks). The no-go zone was included in both alternatives. It would apply year-round regardless of SRKW presence. 
  • License application processes, reporting and training requirements, kayak-focused measures, and AIS requirements were present in both options.