Programmatic Environmental Impact Statement: Commercial Whale Watching Licensing Program

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 reduce the daily and cumulative impacts of vessel noise and disturbance on the endangered Southern Resident Killer Whales (SRKWs or Southern Residents) and consider the economic viability of commercial whale watching license holders. The final programmatic environmental impact statement (FEIS) evaluates action alternatives by examining all areas of probable significant adverse environmental impact.

Background

The SRKWs are the only known resident population of orcas in the contiguous 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 FEIS 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 (WSAS). The FEIS incorporates recommendations and suggestions from public comments submitted during the initial scoping process and during the draft programmatic environmental impact statement (DEIS) comment period, and the Commercial Whale Watching Licensing Program (CWWLP) Advisory Committee recommendations.

Alternatives Considered

The FEIS evaluates four alternatives for a commercial whale watching licensing program in Washington, including a No Action Alternative. The alternatives provide a comprehensive range of restrictions for commercial whale watching (CWW) activity and anticipated benefits to SRKWs. All benefits associated with alternatives are relative to the No Action Alternative, which reflects the current CWW status which does not include regulations other than those already in place for all Washington vessels. The final action chosen by WDFW may not be identical to any single alternative; after reviewing the results of the FEIS, 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. Alternative 1 captures the most restrictive actions that WDFW could choose because it includes zero in all of its component ranges, which would eliminate CWW impacts on SRKWs and all marine life. Alternative 1 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). 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 SRKWs and/or provide documentation of their observations of SRKWs, such as logs of SRKW sightings, viewing, and other on-the-water observations.
• Non-motorized vessels: In addition to meeting the requirements that apply to all CWW operators, non-motorized vessels such as kayaks or standup paddleboards 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.
• Use of an automatic identification system (AIS): AIS is a tracking system that uses transceivers to provide information such as vessel identification, position, course, speed, and navigational status. Under Alternative 1, all CWW vessels, both motorized and non-motorized, would be required to have AIS installed and turned on when operating tours. Tours with non-motorized vessels, such as kayaks, can meet this requirement by having AIS installed on one vessel per tour.

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). 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 when private recreational vessels are observed in the presence of SRKWs (e.g., when 1 or more private recreational vessels are in the vicinity or only when larger groups of private recreational vessels are in the vicinity).
• Non-motorized vessels: 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.
• Use of AIS: All motorized CWW vessels would be required to have AIS installed and turned on when operating tours, regardless of whether they are viewing SRKWs or not.

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. 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”); no other reporting on SRKW presence, location, and/or on the water behavior would be required.

Alternative 4, or the No Action Alternative, reflects the current CWW status which does not include regulations other than those already in place for all Washington vessels. 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 on the 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 1 km, 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 of SRKWs.
• Reporting: There are no current requirements for reporting information related to SRKWs. Some CWW operators voluntarily report SRKW presence and location to WDFW Enforcement, Soundwatch, and/or the WhaleReport Alert System.
• Non-motorized vessels: In this alternative, there are no kayak-specific regulations except for the voluntary KELP best practices.
• Use of AIS: Currently, approximately 50% of the Primary Motorized Whale Watch fleet have AIS installed per US Coast Guard requirements for vessels 65 ft and above.1 However, there are no CWW-specific requirements related to AIS use.

Adaptive Management

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 SRKWs and the 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 reduce the daily and cumulative impacts of CWW vessel noise and disturbance on SRKWs and consider the economic viability of commercial whale watching license holders. Table ES-1 summarizes the conclusions of the analysis of anticipated environmental impacts. In the alternative analysis, benefits and adverse impacts are identified in relation to Alternative 4, the No Action Alternative, which is associated with the most significant adverse impacts.

The FEIS recommends that WDFW select components from multiple alternatives to both support sustainable commercial whale watching opportunities and reduce daily and cumulative impacts on commercial whale watching from vessel noise and disturbance.

Mitigation Measures

Mitigation measures are actions that can supplement the environmental benefits associated with all alternatives (in the case of the No Action Alternative, mitigation measures could reduce the associated adverse environmental impacts). The mitigation measures below are intended 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 private recreational boaters: There is currently little published empirical evidence of the influence, including potential sentinel and/or magnet effects, of CWW vessels on the behavior of private recreational vessels. However, WDFW could evaluate the extent and ways in which CWW vessels may affect private 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 FEIS notes that there is anecdotal evidence of both the sentinel and magnet effect but due to insufficient scientific evidence, WSAS Science Panel urges caution and to consider every interaction as an opportunity to disturb SRKWs.

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 are in the FEIS alternatives. Similar to the influence of CWW on private recreational vessels, this mitigation measure will be considered as part of WDFW’s adaptive management program and evaluated over time.

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.

Public Engagement and Changes Made for the Final EIS

Following the publication of the DEIS on September 23, 2020, there was a 30-day public comment period, during which reviewers had 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 DEIS could be made before its finalization.

The public comment period included a 2-hour virtual public meeting on Monday, October 19, 2020, from 6:00PM to 8:00PM PDT. This meeting provided an additional opportunity for members of the public to share comments on the DEIS.

The FEIS on the Commercial Whale Watching Licensing Program includes edits made to the DEIS based on public comments, and a comprehensive list of all public comments received during the public comment period. The FEIS 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. The Fish and Wildlife Commission will decide on a final rule for the CWWLP on December 18, 2020. The CWWLP will likely become effective 31 days after it is filed with the Code Reviser and published in the Register.