December 2022 update:
Last month, the Washington Department of Fish and Wildlife (WDFW) published its
first biennial report on the efficacy of orca regulations in our state. WDFW recommends that the Washington State Legislature adopt a new statute setting an approach limit of
1,000 yards around southern resident killer whales, applicable to all vessels, during all seasons, at all times.
Currently, Washington's general approach limit for southern residents is
300 yards to the side,
400 yards to front or rear.
2019 Wash. Sess. Laws 1669. However, commercial whale watching boats can only take advantage of the 300/400-yard approach limit during summertime months (July 1 through September 30), and even during those months, only during
two windows each day from 10:00 AM to 2:00 PM, and again from 3:00 PM to 5:00 PM. Outside the daily summertime windows, commercial whale watching boats are subject to a larger approach limit of
one-half nautical mile (approximately 1,000 yards).
WSR-21-23-070. There are also limits on the number of commercial whale watching boats that may cluster within the vicinity of southern residents.
WSR 21-01-216.
Non-commercial boaters are not ever subject to the larger approach limit; they remain subject to the general approach limit of 300/400 yards at all times and during all seasons.
WSR-21-23-070. So the proposed new statute would be a significant expansion of the southern resident protection bubble. It would make the 1,000-yard approach limit apply to all boats (not just commercial) and would apply the 1,000-yard approach limit year-round.
In addition to the general approach limit, there is currently also a "no-go zone" along the west coast of San Juan Island extending
one-quarter nautical mile offshore, except
one-half nautical mile offshore of Lime Kiln Point. Within this zone, motorized commercial whale watching vessels are prohibited year-round, regardless of the presence of whales. Within this zone, non-motorized commercial kayak guides and their clients must remain within
one hundreds yards of shore, again year-round and regardless of the presence of whales.
WSR-21-23-070. The "no-go zone" exclusions do not apply to recreational boaters, whether motorized or non-motorized. The proposed new statute does not modify the "no go zone" rules.
Transient killer whales (as opposed to southern resident killer whales) do not have an approach limit under state law, but they do have an approach limit under federal law. Within the inland waters of Washington (everything east of Tatoosh Island), the approach limit for all killer whales (both transient and southern resident) is
200 yards to side or rear,
400 yards to the front.
50 C.F.R. § 224.103(e). Nothing in the proposed new statute modifies federal law, of course, and the proposed new statute also does not extend any new protections to transient killer whales.
Washington law formerly mirrored the federal limit with regard to southern residents—
see 2014 Wash. Sess. Laws 254, 275 (200 yards side and rear, 400 yards front)—but in recent years, the legislature has been increasing the protections for southern residents, first to the current limit of 300/400 for rec boaters and one-half nautical mile for commercial whale watchers (
2019 Wash. Sess. Laws 1669), and now, potentially, the proposed limit of 1,000 yards.
Under Washington's old 2014 rule, it was not necessary to distinguish between southern resident killer whales and transient killer whales. Both species were subject to the 200/400 rule under federal law anyway, so for purposes of regulatory compliance, it didn't matter which species you encountered on the water. Since Washington's 2019 rule (300/400 general, 1/2 mile commercial), and especially if Washington's proposed 1,000-yard rule goes into effect, it now does matter which species you encounter on the water.
The
WDFW report supporting the proposed 1,000-yard rule is fascinating reading. It won't surprise anyone to learn that commercial whale watching businesses have been squawking about the ever-widening approach limits and no-go zone rules. No doubt the whale watchers would prefer a regulatory environment in which they could motor right up to the whales to give their clients the best possible viewing experience. But the whale watchers are savvy enough not to say so out loud. Instead, they have advanced what WDFW calls the "sentinel theory."
The sentinel theory holds that the presence of commercial whale watchers actually protects the whales. When recreational boaters see commercial whale watchers sharking around a pod of whales, the recreational boaters are reminded of the approach limit and further reminded that someone is watching them and might report them if they violate the limit. The whale watchers are eco-guardians! And of course, eco-guardians can't perform their eco-guarding duties if they're not allowed to approach the whales, so we'd better set those approach limits as close as possible and maybe scrap that no-go zone while we're at it. And no more limits on the number of whale watching boats clustering around the whales, either. The more sentinels, the better!
Lovers of whales who
don't have a financial interest in approaching whales as closely as possible reject the sentinel theory. They have advanced a competing theory: the "magnet theory." The magnet theory holds that recreational boaters are actually attracted to approach whales when they see commercial whale watching boats. Were it not for the commercial whale watching boats, the recreational boaters might not have noticed the whales at all and might not have approached to check them out. Even worse, the rec boaters who follow the commercial whale watchers do not always abide by the approach limit once they reach the whales. Push those relentless commercial whale watchers farther away, and your average beer-chugging rec boater wouldn't even know to look for whales in the first place.
The legislature directed WDFW to examine whale-watching issues, including the sentinel theory and magnet theory, under the light of the "best available science." Unfortunately, the best available science isn't very good. Samples sizes are tiny. Data collection is episodic. Selection, reporting, and confirmation biases are rife. Human subjects know when they're being observed. There are no experimental controls.
The best we can glean from this muddle is a collection of anecdotes, and the anecdotes cut both ways. Recreational boaters do seem to slow down in the vicinity of commercial whale watching boats (lending at least some credence to the sentinel theory), but the number of rec boaters in the vicinity of whales does seem to increase when whale watching boats are present (supporting the magnet theory). Since anecdotes constitute the best available science on this issue, I'll add that the
first time I went kayaking with a gray whale, I followed a commercial whale watching boat to locate the whale. Magnet theory confirmed!
WDFW cleverly threads the needle. Without endorsing either the sentinel theory or the magnet theory, WDFW argues that the 1,000-yard rule works regardless of which theory is true—or even if neither is true. Given that whales react more adversely to boats the closer the boats approach, there is a sound basis to set a universal, 1,000-foot yard rule, thus mitigating some possible effects of the magnet theory. Even from 1,000 yards' distance, the commercial whale watchers will still be able to perform their self-appointed eco-guardianship mission, setting a good example for rec boaters and jumping on the radio to warn off rec boaters who violate the limit, so any possible benefits of the sentinel theory are not deprecated.
To my mind, the savviest aspect of the proposed 1,000-yard rule is that it eliminates the discrepancy between the different approach limits for commercial boats (one-half nautical mile) and rec boats (300/400 yards). I suspect one of the commercial whale watchers' main grievances has been that their customers, who paid good money to see some whales, have to squint at the whales from three times the distance as random rec boaters who haven't paid a dime. It's hard to justify selling a commercialized experience when other people are enjoying something way better for free.
I hope the legislature acts on the proposed 1,000-yard statute. In fact, I'd even go farther and apply it to all killer whales. It would spare us having to distinguish the two species on the water, and even if the transient orcas aren't endangered, it wouldn't hurt us to afford them a little bit of solicitude.
Alex
