A place to centralize and archive rules regarding the interaction of boats and southern resident killer whales (endangered under the ESA and SARA). Much of this information was derived from a summary document handed out at the 2009 SRKW Transboundary Naturalist Workshop (thanks to Lynne Barre and Kari Koski). Updates were provided by Lynne Barre of NOAA in May, 2012.
2011 Federal rule
In April, 2011, NOAA issued a new rule to protect SRKWs in WA State under both the ESA and MMPA. The rule enhanced protection primarily by increasing observation distance to 200 yards and became effective on May 16, 2011.
This September, 2010, Seattle Times article suggested Federal penalties may be 10-30x State ones, thus about $10,000-30,000. The WDFW notice archived here says "the maximum fine under federal law is $10,000."
In early 2012, NOAA General Counsel provided this information regarding penalties under the MMPA and ESA:
SRKW are listed as endangered, and under ESA the civil penalty for a violation involving an endangered species can range up to a maximum of $32,500 per violation. Under MMPA the civil penalty for a violation can range up to a maximum of $11,000 per violation. (Note those maxima reflect the current adjustments for inflation by the Commerce Department, so they are higher than the maximum penalty amounts that appear in the ESA and MMPA; respectively $25,000 and $10,000.)
The NOAA civil penalty policy is available at: http://www.gc.noaa.gov/documents/031611_penalty_policy.pdf
Here is a handy summary of both civil and criminal penalties in a report regarding potential penalties for the Gulf Spill: http://www.fas.org/sgp/crs/misc/R41370.pdf
Washington State law
Update May, 2012: WA State is working on adjusting their regulations to match the Federal 200 yard rule.
The summary of Washington House Bill 2514 passed during the 2007-2008 Legislature states “It is a natural resource infraction to approach or cause a vessel to approach within 300 feet of a southern Orca whale.”
Penalties: A violation is a natural resource infraction punishable under chapter 7.84 RCW. WDFW page regarding enforcement of the law specifies that "violation of the law is a civil infraction that carries penalties of up to $1,025."
NEW SECTION. Sec. 2. A new section is added to chapter 77.15 RCW to read as follows: (1) Except as provided in subsection (2) of this section, it is unlawful to: (a) Approach, by any means, within three hundred feet of a southern resident orca whale (Orcinus orca); (b) Cause a vessel or other object to approach within three hundred feet of a southern resident orca whale; (c) Intercept a southern resident orca whale. A person intercepts a southern resident orca whale when that person places a vessel or allows a vessel to remain in the path of a whale and the whale approaches within three hundred feet of that vessel; (d) Fail to disengage the transmission of a vessel that is within three hundred feet of a southern resident orca whale, for which the vessel operator is strictly liable; or (e) Feed a southern resident orca whale, for which any person feeding a southern resident orca whale is strictly liable. (2) A person is exempt from subsection (1) of this section where: (a) A reasonably prudent person in that person's position would determine that compliance with the requirements of subsection (1) of this section will threaten the safety of the vessel, the vessel's crew or passengers, or is not feasible due to vessel design limitations, or because the vessel is restricted in its ability to maneuver due to wind, current, tide, or weather; (b) That person is lawfully participating in a commercial fishery and is engaged in actively setting, retrieving, or closely tending commercial fishing gear; (c) That person is acting in the course of official duty for a state, federal, tribal, or local government agency; or (d) That person is acting pursuant to and consistent with authorization from a state or federal government agency. (3) Nothing in this section is intended to conflict with existing rules regarding safe operation of a vessel or vessel navigation rules. (4) For the purpose of this section, "vessel" includes aircraft, canoes, fishing vessels, kayaks, personal watercraft, rafts, recreational vessels, tour boats, whale watching boats, vessels engaged in whale watching activities, or other small craft including power boats and sail boats. (5) A violation of this section is a natural resource infraction punishable under chapter 7.84 RCW.
In 2007 San Juan County enacted a county ordinance to protect the whales, however, this ordinance is no longer in effect and was subsumed by the state regulation.
Be Whalewise Guidelines
"Do not follow or pursue the whales. Stay 100 yards away."
Section on killer whales:
1. BE CAUTIOUS and COURTEOUS: approach areas of known or suspected marine wildlife activity with extreme caution. Look in all directions before planning your approach or departure. 2. SLOW DOWN: reduce speed to less than 7 knots when within 400 metres/yards of the nearest whale. Avoid abrupt course changes. 3. KEEP CLEAR of the whales’ path. If whales are approaching you, cautiously move out of the way. 4. DO NOT APPROACH whales from the front or from behind. Always approach and depart whales from the side, moving in a direction parallel to the direction of the whales. 5. DO NOT APPROACH or position your vessel closer than 100 metres/yards to any whale. 6. If your vessel is not in compliance with the 100 metres/yards approach guideline (#5), place engine in neutral and allow whales to pass. 7. STAY on the OFFSHORE side of the whales when they are traveling close to shore. 8. LIMIT your viewing time to a recommended maximum of 30 minutes. This will minimize the cumulative impact of many vessels and give consideration to other viewers. 9. DO NOT swim with, touch or feed marine wildlife.
Penalties: Consultation with Soundwatch or Straitwatch; annual report card for commercial operators?
US AND CANADA NORTHWEST/PACIFIC REGION UNIFIED GUIDELINES
In 2002, the US and Canadian governments, non-governmental monitoring groups and the whale watch association worked together to develop a single set of voluntary guidelines that were more explicit than previous regional guidelines and addressed localized whale watch concerns. The Be Whale Wise Guidelines for Marine Wildlife are now the regional guidelines in the US and Canada and are periodically evaluated and revised as needed. Many species of marine wildlife, such as the endangered southern resident killer whales are showing signs of vulnerability. Meanwhile, vessel traffic in our waters is steadily increasing, placing added pressures on marine animals and their habitats. The Be Whale Wise guidelines are designed to help people enjoy wildlife encounters, and reduce the risk of disturbing marine wildlife.
The Pacific Whale Watch Association, (formerly Whale Watch Operators Association Northwest) is a membership association of US and Canadian commercial whale companies operating in the Washington State and Southern Vancouver Island region. The association maintains an annual set of guidelines that are as restrictive as the regional federal guidelines as well as addressing specific actions for specific species, areas and situations relevant to the more experienced commercial whale watcher. Look for 2009 updates.
Fisheries and Oceans Canada is responsible for the conservation and protection of Canada’s marine resources, including marine mammals under the Marine Mammal Regulations of the Fisheries Act. Regulations, policies and management plans, and education are the tools of protection. The Fisheries and Oceans Canada Pacific region has adopted the Be Whale Wise Guidelines as the Pacific Regional Guidelines.
NOAA Fisheries Office of Protected Resources is responsible for protecting marine mammals and works to conserve, protect, and recover species under the Endangered Species Act and the Marine Mammal Protection Act in conjunction with Regional Offices, Science Centers, and various partners. Watching marine animals in their natural habitat can be a positive way to promote conservation and respect for the animals and the marine environment. However, irresponsible human behavior can disturb animals, destroy important habitats, and even result in injury to animals and people.
The Northwest Region of NOAA Fisheries promotes broad regional guidelines to avoid harassment of marine mammals by boat, plane or individual actions while whale watching or viewing other marine mammals from sea or land. People should not perform any negligent or intentional action that disrupts the normal behavior of a marine mammal including not approaching within 100 yards, not herding, chasing or separating groups of marine mammals, not putting people into the water with marine mammals, avoiding flying lower than 1,000 feet, circling or hovering over marine mammals.
SAN JUAN ISLAND, WA, SPECIFIC KILLER WHALE GUIDELINES
San Juan County Marine Stewardship Area
Haro Strait Voluntary No Motor Boat Zone for Whales is a voluntary whale protection zone for Orcas when they are present along the western shoreline of San Juan Island, Washington. An additional 2-mile area around Lime Kiln Washington State Park / Whale Watch Park from the shore out to 1⁄2 mile (880 yards) provides a motor-boat free area for park visitors viewing whales from shore. This zone was a collaborative effort lead by the Soundwatch Program and adopted by Whale Watch Operators Association Northwest in 1996. In 2004, San Juan County included this zone as part of the countywide Marine Stewardship Area.
San Juan Island Specific Kayaker Guidelines adopted by San Juan Island commercial kayak companies and promoted by the Soundwatch Program. In addition to the Be Whale Wise Guidelines:
- Have a trip plan: know your routes, public landing areas, and sensitive wildlife areas.
- Position kayaks inshore of whales along shorelines and in kelp beds, group together kayaks to appear as
one vessel, stop paddling and let whales pass.
- Paddle wide arc around marine mammal haul out areas.
Endangered Species Act (ESA)
Congress passed the ESA in 1973 and it provides for the conservation of species that are endangered or threatened, and the conservation of the ecosystems on which they depend. The listing of a species as endangered makes it illegal to “take” that species. Similar prohibitions usually extend to threatened species.
The term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. (Note: under the ESA there are no specific definitions of harass or pursue.)
Marine Mammal Protection Act (MMPA)
Penalties: Taking marine mammals violates the federal Marine Mammal Protection Act. Violators could be subjected to a $10,000 civil violation, a criminal penalty of $100,000 or one year in prison, according to the National Marine Fisheries Service.
All marine mammals are protected under the MMPA of 1972. The MMPA prohibits, with certain exceptions, the "take" of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S.
The MMPA defines “take” to mean “to hunt harass, capture, or kill” any marine mammal or attempt to do so. “Take” also includes the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal and feeding or attempting to feed a marine mammal in the wild. The term “harassment” means “any act of pursuit, torment, or annoyance which:
1) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or
2) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).”
Canada: Species at Risk Act (SARA)
SARA became law in 2003, and the prohibitions under the Act went into effect in June 2004. Once a species is listed under the Species at Risk Act, it becomes illegal to kill, harm, harass, capture or take an individual of a listed species. No person shall destroy any part of the critical habitat of any listed species.
Canada: Fisheries Act
Within Canada, the Fisheries Act (R.S., 1985, c. F-14 ) includes the Marine Mammal Regulations (MMR, SOR/93-56) which prohibit the disturbance of marine mammals. DFO has proposed to amend the existing Marine Mammal Regulations and has gone through public consultations on the Draft Amendments.
A 2011 story in the Vancouver Sun stated:
"In Canada, vessels must stay at least 100 metres away from killer whales under the Canadian Marine Mammal Regulations. Summary convictions carry a maximum fine of $100,000 and one year in jail; indictable convictions carry a maximum fine of $500,000 and two years in jail."