Tag Archives: Vessel regulations

The Laws Protecting Orcas From Boats Are Serious, And So Are The Penalties

Viewing must now be from 200 yards away. (Photo taken in 2009 under permit).

The weather this weekend promises to be great for boating in and around the San Juan Islands, but whether you are paddling about in a kayak or motoring in a luxury yacht, be sure to give a wide berth to the orcas if they are around – or face the possibility of monumental fines, and even jail time.
Newly enacted Federal law protects the whales from the noise and interference of boats within 200 yards, state regulations and county ordinances kick in at 100 yards.
All three levels of government are cooperating  in enforcement, so if you are in violation you face fees at all levels no matter who issues the citations.
San Juan County: In an ordinance passed in 2008, San Juan County was the first legal body to establish any guidelines to protect the whales from boaters. Fine:  $750.00
Washington State: Later in 2008, Washington state passed regulations that further defined safe viewing distances.  Fine:  Up to $500.00
U.S. Government: As of May 16, 2011 the federal government passed even more stringent regulations, based on the Marine Mammal Protection Act and the Endangered Species Act.  Fines: $25,000 (civil),  $50,000 and/or one year in prison (criminal)

In November 2005, the Southern Resident population was listed as endangered under the ESA and, thus, as depleted under the MMPA. NMFS designated critical habitat in November 2006 for the Southern Resident population.In July 2009, NMFS’ Northwest Region proposed vessel regulations to protect the Southern Resident population; the final rule on vessel regulations in Washington state [pdf] (76 FR 20870) published in the Federal Register in April 2011.

Stiff fines are possible.

No bones about it, these laws will be enforced.  San Juan County – which knowing the level of harassment by private boaters first hand had acted on its own while the wheels of the state and federal governments were still spinning – sent this message: “The San Juan County Sheriff will be patrolling the areas off San Juan Island over the summer and is available to assist national Fisheries in enforcing the restricted zones”.
Washington Department of Fish and Wildlife will patrol the area, and Coast Guard vessels will intercede if needed as well.
If these measures seem a bit drastic and desperate…they are, and for good reason.  This unique population of orcas is precariously close to extinction due to lack of food and contaminants, and the authorities are trying to reduce the stress to the whales that they believe is caused by proximity to boats. It is a tiny band-aid on a huge problem, and is largely insignificant when compared to the primary problem for the whales:  they need more salmon.
The irony in all this?  The Pacific Whale Watch Association of commercial boat operators has been addressing the issue since 1994, a full 14 years before the government did anything, and they are the most impacted by these regulations. I observed them from shore all last season as they self regulated a distance 50% farther away from the whales than was required.  And all of us watched private boaters go right to, and over, the whales with no consequences – if these new laws are not fairly applied and are shown to be ineffective they should be rescinded.
But no matter what, the time spent monkeying around with viewing distance should have been dedicated to restoring salmon – starving to death in a quiet world is still starving to death.
Chinook salmon comprise the majority of the Southern Resident orcas' diet.

Questions & Answers on the NOAA Fisheries Vessel Regulations for Killer Whales

These questions and answers are taken directly from the NOAA website, Regulations on Vessel Effects, and are designed to field anticipated questions in advance of actually releasing the document, scheduled for publication later this month. Most affected by these regulations are going to be the commercial whale watching companies and kayakers, because the lack of enforcement will allow private boaters to continue to behave as they wish.  Whereas the commercial companies are accountable and somewhat self policing, and kayakers are slow moving and tend to hug the shoreline, private boaters are able to zip out to the orcas with only the risk of being pulled over and handed some literature.

J pod orcas and fishing boat (Center for Whale Research photo)

I’m reserving my opinion until the regulations officially come out, but at this point it seems that these regulations are not only toothless, they just serve to distract from the most serious issue facing the orcas:  finding enough salmon.  Ironically, only fishermen are allowed to be in the path of the orcas, and are allowed to fish where the salmon congregate in the endangered Southern Resident orcas’ summer habitat day and night.

Go figure.

The questions:
Q. What did NOAA Fisheries announce about vessel regulations for killer whales?
A. NOAA Fisheries announced new regulations to protect killer whales in inland waters of Washington State from the effects of various vessel activities. The new regulations have two parts:
1. vessels must not approach any killer whale within 200 yards
2. vessels must stay out of the path of oncoming whales out to 400 yards.

Q. Will this action affect whale watching this summer?
A. Yes. The new regulations go into effect 30 days after the Federal Register notice publishes. NOAA has published a final rule and provided supporting documents including an Environmental Analysis and Regulatory Impact Review that provide detailed information on the rationale, costs and benefits for the final regulations. We’re working with our partners to educate boaters about the new regulations on and off the water. We also encourage all vessels to follow the Be Whale Wise guidelines that have additional information on responsible wildlife viewing.

Q. Do these new regulations apply to me?
A. If you are boating in the inland waters of Washington State (waters east of Cape Flattery including the Strait of Juan de Fuca, Haro Strait and Puget Sound), these regulations apply to you. The regulations apply to all types of vessels, including motorboats, sailboats and human-powered vessels, like kayaks, and they apply to foreign flag vessels in U.S. waters. There are some limited exemptions to the regulations, including vessel operations necessary for safety, including safe navigation according to Coast Guard navigation rules. Certain government vessels, ships in established shipping lanes, commercial and tribal fishing vessels actively engaged in fishing, and vessels with scientific research permits to study killer whales are exempt from the regulations.

Q. Why is NOAA Fisheries issuing new regulations?
A. NOAA Fisheries listed the Southern Resident killer whales as endangered under the Endangered Species (ESA) on Nov. 18, 2005. The agency identified vessel effects as a potential contributing factor in the population’s decline. The recovery plan for Southern Resident killer whales contains management actions to address vessel impacts, including evaluating current vessel guidelines and the need for regulations and/or protected areas. Several pieces of evidence indicate that some whale-watching activities may harm individual killer whales, potentially reducing their fitness and increasing the population’s risk of extinction. The evidence includes monitoring data on the large number of vessels in close proximity to the whales, research results on behavioral and acoustic impacts caused by vessels, and the risk of vessel strikes. These new regulations will help recover the endangered Southern Residents and protect all killer whales.
Northwest Region
April 8, 2011

Q. How are the proposed regulations different from the current guidelines?
A. There are voluntary Be Whale Wise guidelines intended to protect whales from harassment. NOAA supports the Soundwatch program, an on-water stewardship and monitoring group, to promote the Be Whale Wise guidelines and monitor vessel activities in the vicinity of whales. Despite guidelines, outreach efforts, and ESA and MMPA prohibitions, interactions between vessels and killer whales continue to occur in the waters of Puget Sound and the Georgia Basin. The Be Whale Wise guidelines recommend that vessels stay at least 100 yards from all whales, while the final rule requires vessels to stay 200 yards from all killer whales. The final rule also prohibits vessel operators from intercepting the path of the whales, which is the same as the current guidelines. So, if you are already whale wise, you’ve got a head start on learning and following the new regulations.

Q. Why are the proposed regulations different from the current Be Whale Wise guidelines and Washington State law?
A. Several recent studies have reported whales reacting to vessels as far away as 400 yards. The closer vessels approach, the more likely there is to be a reaction. Recent studies have also concluded that sound from vessels at 100 yards can affect the whales’ ability to find prey and communicate. Fast-moving vessels at 100 yards can reduce the whales’ ability to detect a salmon with echolocation by 88 to 100 percent. We were concerned that vessels at 100 yards can harm the whales. These are the reasons for the 200-yard approach limit versus the 100-yard recommendation in the guidelines. Detailed information on the scientific basis for the 200-yard approach regulation is in the signed final rule and environmental assessment. A list of references for the final rule is available on the Northwest Region Website.

Q. If NOAA is concerned about vessel sounds affecting the whales, why do the regulations apply to quiet kayaks?
A. There are several ways that vessels can impact the whales, including risk of vessel strikes, acoustic disturbance and behavioral disturbance. Even though kayaks are quiet, they can still disturb the behavior of the whales, including their traveling and feeding behavior. In a study of kayaks and Northern Resident killer whales, researchers found the whales were more likely to travel when kayaks were the only boats near the whales. Increasing travel is likely an avoidance tactic that can increase the whales’ energy expenditure and reduce the amount of time the whales spend feeding. Motorized boats also change the whales’ feeding behavior, and their engine sounds can reduce the effectiveness of the whales’ echolocation. While kayaks may have less of an effect than motorized boats, there are a large number of kayaks near the whales and those small impacts in addition to impacts from motorized boats add up. Other studies of dolphins and other marine mammals have consistent results and show kayaks can change behavior when they approach too closely.

Q. How are the final regulations different than what NOAA proposed in July of 2009?
A. The proposed rule included a no-go zone along the west side of San Juan Island that boats would not be allowed to enter from May through September. The no-go zone was not adopted as part of the final rule. During the public comment period, we received a large number of comments specific to the no-go zone including new speed zone alternatives, different exceptions, and questions about the economic impacts of a no-go zone. We’ve decided to gather additional information and conduct further analysis and public outreach on the concept of a no-go zone, which may be part of a future rulemaking.

Q. How will NOAA make sure the new regulations are working?
A. As part of an implementation plan, NOAA will continue to work with Soundwatch and researchers to monitor vessel activity around the whales. Comparing the numbers of vessels near the whales and the number of incidents when vessels get too close to the whales before and after the new regulations will help us see if the new regulations are working to reduce vessel impacts.

Q. Has NOAA regulated vessel activities near whales in other areas?
A. Yes. The agency has regulated close vessel approaches to humpback whales in Hawaii and Alaska, and right whales in the North Atlantic. The agency has also established no-entry zones for Steller sea lions in Alaska. NOAA’s Office for Law Enforcement has experience enforcing approach regulations for marine mammals.

Q. What else is NOAA doing to protect endangered Southern Resident killer whales?

A. NOAA and our many partners in the community are actively implementing a variety of actions from the recovery plan to address all of the threats to Southern Resident killer whales. In March 2011, NOAA published a five-year review that summarizes the progress toward recovery since the whales were listed as endangered in November 2005. The five-year review describes actions to address prey, pollution and contaminants, vessel and sound disturbance, and oil spills.