OLYMPIA — Supporters of a bill that expands the recreational watercraft no-boating protective zone around Southern Resident orcas outnumbered opponents by a 291-1 margin at a state Senate hearing Jan. 30.
But ESSB 5371, being ushered through the legislative session by two 24th District lawmakers, is in trouble in the House panel chaired by Democratic Rep. Mike Chapman of Port Angeles as a key deadline approaches.
Chapman said last week he lacks the votes to move the proposal out of his Agriculture and Natural Resources Committee but hopes an amendment being worked on as of mid-day Friday will mollify critics.
The proposal, which expands the protective area from 300 yards to 1,000 yards, barely passed muster 5-4 — on a party line vote — in the Senate Agriculture, Water, Natural Resources and Parks Committee chaired by Democratic Sen. Kevin Van De Wege of Port Angeles.
It is dogged by concerns over extending the zone around the J, K and L pods — and fining boaters and paddlers who don’t observe it.
Chapman said committee members are hoping to complete an amendment discarding a provision for $250 fines — already reduced from $500 — in time to pass it out of committee by Wednesday, the deadline for sending non-fiscal bills to the House floor. The legislative session ends April 23.
Chapman said the idea of fines would be replaced with education for boaters who encroach inside the 10-football-field-long protection zone.
The amendment would toughen the bill by making it a gross misdemeanor to harass a Southern Resident orca.
Harassment under the Marine Mammal Protection Act is “any act of pursuit torment or annoyance” which could injury a marine mammal or could disturb it by disrupting its behavior. Level B harassment has the potential to injure a marine mammal.
Any changes would have to be approved by the Senate, which would be forwarded a recommendation by Van De Wege, the bill sponsor, and the committee’s ranking Republican.
“I’m trying to get enough votes to move it out of committee,” Chapman said Wednesday, adding Fish and Wildlife is on board with the changes. “They want to see the bill move forward so they are working with us to get a good bill.”
The whale watching industry’s reaction has been muted.
Pete Hanke, owner of Puget Sound Express whale watching tours in Port Angeles, Port Townsend and Edmonds, is president of the Pacific Whale Watch Association, which had 30 members from northern Vancouver Island to Seattle.
He said the association is indifferent to 5371, which would require whale watch companies to stay approximately 1,000 yards away from the orcas year-round instead of nine months under existing regulations, according to the Department of Fish and Wildlife. They already must stay a half-nautical mile away, or 1,013 yards.
The bill reduces license fees for whale watching business and operators and requires paddle tour owners to obtain a business license to conduct tours in state waters inhabited by marine mammals.
The Southern Resident orcas’ main food source is salmon. They are found mostly off British Columbia and the Washington and Oregon Coast, and forage along the outer coast, according to the federal Marine Mammal Commission.
The bill sponsor is Sen. Liz Lovelett of Anacortes, whose district includes the San Juan Islands, which are frequented by the orcas.
The three pods are listed as endangered under the Endangered Species Act. Their numbers peaked at 97 in 1996, dropping to 79 in 2001 and sit at 73 as of 2022.
Fish and Wildlife says enforcement under 5371 would focus on warnings and education, as it does with the 300-yard limit.
DFW whale policy lead Julie Watson, who testified at the Senate hearing, emphasized in an interview that 5371’s ticketing provision extends an existing buffer.
“Only in most cases that are for the most part repeated and egregious [violations] are they issuing a ticket,” she said. “Out of hundreds and hundreds of hours on the water last year, they issued 12 tickets.”
Van De Wege, whose committee Watson testified before on Jan. 30, said Thursday he “reluctantly” voted for 5371.
“I think that bill’s probably in a lot of trouble,” he said.
The bill has its supporters.
During the Jan. 30 hearing, there were 1,461 who favored the bill, as is, and five opposed, who signed up to voice an opinion but chose not to testify.
Watson and other speakers said current science supports the 1,000-yard buffer to protect the animals from interference and underwater boat noises and allows them to feed in a more undisturbed environment.
Tim Regan, the former scientific program director and executive director of the federal Marine Mammal Commission, said sounds change the whales’ behavior, leading to reduced survival and population decline.
Regan said there are 25 reproductive females in the population. In the next 13 years, 14 of the females will age out or die, and will be replaced by eight females.
But committee members questioned the difficulty of estimating 1,000 yards.
The buffer “seems fairly arbitrary,” Republican Rep. Keith Wagoner said. “It’s really hard to see a marine mammal at half a nautical mile, so I’m wondering where that number came from.”
Watson said recent studies show current buffer and 7-knot speed limits near the Southern Resident orcas still allow substantial impacts on the whales’ ability to forage, forcing them to give up on hunting even outside 1,000 yards.
Bob Wise, president of the Recreational Boating Association of Washington said the group has “process concerns” about the bill.
Uppermost is the 1,000-yard buffer.
Wise said the legislation forces boaters to distinguish between Southern Resident orca whales and other whales, an “extremely difficult” endeavor.
And he cited exemptions for commercial fishing within the 1,000-yard perimeter that need to be changed if impacts on foraging are truly a concern.
The March 15 hearing before Chapman’s committee included Lovelett’s emotional testimony citing the orca Tahlequah’s sad journey in 2018, when she carried her stillborn calf for 17 days through the Salish Sea.
“When you have an animal that relies on echolocation to find their prey, and find each other, and you have boats of all shapes and sizes in their habitat, it makes it incredibly difficult for them to navigate those waters, to keep an eye on their young and to find food,” Lovelett said.
“No one is asking boaters to measure the distance to whales with a laser device measuring where the whales are,” she said.
The text of the bill, a bill report outlining its contents, and recordings of committee hearings are at leg.wa.gov.
Legislative Reporter Paul Gottlieb, a former senior reporter at Peninsula Daily News, can be reached at firstname.lastname@example.org.