wa-law.org > bill > 2023-24 > SB 5371 > Substitute Bill
Except as provided in subsection (2) of this section, it is unlawful for a person to:
Cause a vessel or other object to approach, in any manner, within 1,000 yards of a southern resident orca ;
Position a vessel to be in the path of a southern resident orca at any point located within 1,000 yards of the whale. This includes intercepting a southern resident orca by positioning a vessel so that the prevailing wind or water current carries the vessel into the path of the whale at any point located within 1,000 yards of the whale;
c.
Fail to disengage the transmission of a vessel that is within 400 yards of a southern resident orca ;
d. Cause a vessel or other object to exceed a speed greater than seven knots over ground at any point located within 1,000 yards of a southern resident orca ; or
e. Feed a southern resident orca .
A person is exempt from subsection (1) of this section if that person is:
Operating a federal government vessel in the course of official duties, or operating a state, tribal, or local government vessel when engaged in official duties involving law enforcement, search and rescue, or public safety;
Operating a vessel in conjunction with a vessel traffic service as a vessel traffic service user established under 33 C.F.R. and following a traffic separation scheme, or complying with a vessel traffic service or captain of the port measure or direction, complying with the rules of the road or taking actions to ensure safety. This also includes vessel transits departing the lanes for safety reasons or to approach or depart a dock or anchorage area, including support vessels escorting or assisting vessels, such as tug boats;
Engaging in an activity, including scientific research or oil spill response, pursuant to the conditions of a permit or other authorization from the national marine fisheries service or the department;
Lawfully engaging in a treaty Indian or commercial fishery that is actively setting, retrieving, or closely tending fishing gear. Commercial fishing vessels in transit are not exempt from subsection (1) of this section;
Conducting vessel operations necessary to avoid an imminent and serious threat to a person, vessel, or the environment, including when necessary for overall safety of navigation and to comply with state and federal navigation requirements; or
Engaging in rescue or clean-up efforts of a beached southern resident orca overseen, coordinated, or authorized by a volunteer stranding network.
For the purpose of this section, "vessel" includes aircraft while on the surface of the water, and every description of watercraft on the water that is used or capable of being used as a means of transportation on the water. However, "vessel" does not include inner tubes, air mattresses, sailboards, and small rafts, or flotation devices or toys customarily used by swimmers.
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A violation of this section is a natural resource infraction punishable under chapter 7.84 RCW and carries a fine of up to $250, not including statutory assessments added pursuant to RCW 3.62.090.
A person who qualifies for an exemption under subsection (2) of this section may offer that exemption as an affirmative defense, which that person must prove by a preponderance of the evidence.
The department may choose to offer educational materials in lieu of issuing an infraction, at the officer's discretion.
The department must post signs at public boat launches and marinas that provide information regarding the vessel setbacks and speed limits required by this section. However, the requirements of this section apply whether or not a sign is present and the absence of a sign is not a defense to any violation of this section.
The department shall conduct outreach and education regarding regulations and best practices for recreational boating in waters inhabited by southern resident orcas, including best practices for inadvertent encounters closer than 1,000 yards from a southern resident orca. This may include the advancement and proliferation of tools for notifying boaters of southern resident orca presence, identifying orca ecotypes, and estimating distance on the water.
A commercial whale watching business license is required for commercial whale watching businesses. The annual fee for a commercial whale watching business license is $200 in addition to the annual application fee of $70.
The annual fees for a commercial whale watching business license as described in subsection (1) of this section must list each motorized or sailing vessel
to be covered under the business license.
submits to the department an application that identifies the vessel proposed to be designated and any other information required by the department
.
4.
A commercial whale watching operator license is required for commercial whale watching operators. A person may operate a motorized or sailing commercial whale watching vessel designated on a commercial whale watching business license only if:
a. The person holds a commercial whale watching operator license issued by the director; and
b. The person is designated as an operator on the underlying commercial whale watching business license.
No individual may hold more than one commercial whale watching operator license. An individual who holds an operator license may be designated as an operator on an unlimited number of commercial whale watching business licenses.
The annual application fee for a commercial whale watching operator license is $25.
A paddle tour business license is required for businesses conducting paddle tours. The annual fee for a paddle tour business license is $200 in addition to the annual application fee of $70.
A person may conduct guided paddle tours only if:
The person holds a paddle guide license issued by the director; and
The person is designated as a guide on the underlying paddle tour business license.
No individual may hold more than one paddle guide license. An individual who holds a paddle guide license may be designated on an unlimited number of paddle tour business licenses.
The annual application fee for a paddle guide license is $25 .
The definitions in this subsection apply throughout this section unless the context clearly requires otherwise.
"Commercial whale watching" means the act of taking, or offering to take, passengers aboard a motorized or sailing vessel to view marine mammals in their natural habitat for a fee.
"Commercial whale watching business" means a business that engages in the activity of commercial whale watching.
"Commercial whale watching business license" means a department-issued license to operate a commercial whale watching business.
"Commercial whale watching license" means a commercial whale watching business licenseor a commercial whale watching operator license as defined in this section.
"Commercial whale watching operator" means a person who operates a motorized or sailing vessel engaged in the business of whale watching.
"Commercial whale watching operator license" means a department-issued license to operate a commercial motorized or sailing vessel on behalf of a commercial whale watching business.
"Commercial whale watching vessel" means any vessel that is being used as a means of transportation for individuals to engage in commercial whale watching.
"Paddle guide" means a person who conducts guided tours on behalf of a paddle tour business.
"Paddle guide license" means a department-issued license to conduct commercial guided paddle tours on behalf of a paddle tour business.
"Paddle tour business" means a business that conducts paddle tours.
"Paddle tour" means the act of guiding or offering to take people aboard nonmotorized or human-powered vessels, such as kayaks or paddle boards, on a trip, tour, or guided lesson that involves viewing marine mammals in their natural habitat for a fee.
The residency and business requirements of RCW 77.65.040 (2) and (3) do not apply to Canadian individuals or corporations applying for and holding Washington commercial whale watching licenses defined in this section.
The license and application fees in this section may be waived for organizations whose relevant commercial whale watching or marine paddle tour activities are solely for bona fide nonprofit educational purposes.
This section applies only to persons and activities defined in RCW 77.65.615, including commercial whale watching and paddle tours.
A person is guilty of unlawfully engaging in commercial whale watching in the second degree if the person conducts commercial whale watching activities and:
Does not have and possess all licenses and permits required under this title; or
Violates any department rule regarding commercial whale watching .
A person is guilty of engaging in commercial whale watching in the first degree if the person commits the act described in subsection (2) of this section and the violation occurs within five years of any of the following:
The date of a prior conviction under this section;
The date of a finding of guilt or plea of guilty pursuant to an amended information, criminal complaint or citation, or infraction for any violation that was originally charged as a violation of this section, regardless of whether the imposition of the sentence is deferred or the penalty is suspended; or
The date of any disposition of a case arising from an act originally charged as a violation of this section, whereby the offender enters into a disposition that continues or defers the case for dismissal upon the successful completion of specific terms or conditions.
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Unlawful commercial whale watching in the second degree is a misdemeanor.
Unlawful commercial whale watching in the first degree is a gross misdemeanor. In addition to the appropriate criminal penalties, the director shall revoke any operator license, business license, or both, and order a suspension of the person's privilege to engage in commercial whale watching for two years.
A person is guilty of unlawfully engaging in a paddle tour in the second degree if the person conducts paddle tour activities and:
Does not have and possess all licenses and permits required under this title; or
Violates any department rule regarding the operation of paddle tours in marine waters.
A person is guilty of unlawfully engaging in a paddle tour in the first degree if the person commits an act described in subsection (5) of this section and the violation occurs within five years of the date of any of the following:
The date of a prior conviction under this section;
The date of a finding of guilt or plea of guilty pursuant to an amended information, criminal complaint or citation, or infraction for any violation that was originally charged as a violation of this section, regardless of whether the imposition of sentence is deferred or the penalty is suspended; or
The date of any disposition of a case arising from an act originally charged as a violation of this section, whereby the offender enters into a disposition that continues or defers the case for dismissal upon the successful completion of specific terms and conditions.
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Unlawful engagement in a paddle tour in the second degree is a misdemeanor.
Unlawful engagement in a paddle tour in the first degree is a gross misdemeanor. In addition to appropriate criminal penalties, the director shall revoke any paddle guide license, business license, or both, and order a suspension of the person's privilege to conduct paddle tours in marine waters for two years.
Section 1 of this act takes effect January 1, 2024.