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Washington

West's Revised Code of Washington Annotated. Title 77. Fish and Wildlife. Chapter 77.15. Fish and Wildlife Enforcement Code . 77.15.740. Protection of southern resident orca whales--Penalty

Statute Details
Printable Version
Citation: West's RCWA 77.15.740

Citation: WA ST 77.15.740


Last Checked by Web Center Staff: 10/2013

Summary:   Under this Washington statute, it is unlawful to feed, intercept, or approach within three hundred feet of a southern resident orca whale, with exceptions. A violation is a natural resource infraction.


Statute in Full:

(1) Except as provided in subsection (2) of this section, it is unlawful to:

(a) Cause a vessel or other object to approach, in any manner, within two hundred yards of a southern resident orca whale;

(b) Position a vessel to be in the path of a southern resident orca whale at any point located within four hundred yards of the whale. This includes intercepting a southern resident orca whale 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 four hundred yards of the whale;

(c) Fail to disengage the transmission of a vessel that is within two hundred yards of a southern resident orca whale; or

(d) Feed a southern resident orca whale.

(2) A person is exempt from subsection (1) of this section if that person is:

(a) Operating a federal government vessel in the course of his or her 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;

(b) Operating a vessel in conjunction with a vessel traffic service established under 33 C.F.R. and following a traffic separation scheme, or complying with a vessel traffic service measure of direction. This also includes support vessels escorting ships in the traffic lanes, such as tug boats;

(c) Engaging in an activity, including scientific research, pursuant to a permit or other authorization from the national marine fisheries service and the department;

(d) Lawfully engaging in a treaty Indian or commercial fishery that is actively setting, retrieving, or closely tending fishing gear;

(e) 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

(f) Engaging in rescue or clean-up efforts of a beached southern resident orca whale overseen, coordinated, or authorized by a volunteer stranding network.

(3) For the purpose of this section, “vessel” includes aircraft, canoes, fishing vessels, kayaks, personal watercraft, rafts, recreational vessels, tour boats, whale watching boats, vessels engaged in whale watching activities, or other small craft including power boats and sailboats.

(4)(a) A violation of this section is a natural resource infraction punishable under chapter 7.84 RCW.

(b) 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.

CREDIT(S)

[2012 c 176 § 37, eff. June 7, 2012; 2008 c 225 § 2, eff. June 12, 2008.]

<(Formerly: Game and Game Fish)>

HISTORICAL AND STATUTORY NOTES

Findings--Intent--2008 c 225: “The legislature finds that the resident population of orca whales in Washington waters (Orcinus orca), commonly referred to as the southern residents, are enormously significant to the state. These highly social, intelligent, and playful marine mammals, which the legislature designated as the official marine mammal of the state of Washington, serve as a symbol of the Pacific Northwest and illustrate the biological diversity and rich natural heritage that all Washington citizens and its visitors enjoy.

However, the legislature also finds that the southern resident orcas are currently in a serious decline. Southern residents experienced an almost twenty percent decline between 1996 and 2001. The federal government listed this orca population as depleted in 2003, and as an endangered species in 2005. The federal government has identified impacts from vessels as a significant threat to these marine mammals.

In 2006, after listing the southern resident orcas as endangered, the federal government designated critical orca habitat and released a proposed recovery plan for the southern resident orcas. The federal government has initiated the process to adopt orca conservation rules, but this process may be lengthy. Additionally, although existing whale and wildlife viewing guidelines are an excellent educational resource, these guidelines are voluntary measures that cannot be enforced.

Therefore, the legislature intends to protect southern resident orca whales from impacts from vessels, and to educate the public on how to reduce the risk of disturbing these important marine mammals.” [2008 c 225 § 1.]

Intent--2008 c 225: “The legislature encourages the state's law enforcement agencies to utilize existing statutes and regulations to protect southern resident orca whales from impacts from vessels, including the vessel operation and enforcement standards contained in chapter 79A.60 RCW.” [2008 c 225 § 3.]

2012 Legislation

Laws 2012, ch. 176, § 37, rewrote the section, which formerly read:

“(1) Except as provided in subsection (2) of this section, it is unlawful to:

“(a) Approach, by any means, within three hundred feet of a southern resident orca whale (Orcinus orca);

“(b) Cause a vessel or other object to approach within three hundred feet of a southern resident orca whale;

“(c) Intercept a southern resident orca whale. A person intercepts a southern resident orca whale when that person places a vessel or allows a vessel to remain in the path of a whale and the whale approaches within three hundred feet of that vessel;

“(d) Fail to disengage the transmission of a vessel that is within three hundred feet of a southern resident orca whale, for which the vessel operator is strictly liable; or

“(e) Feed a southern resident orca whale, for which any person feeding a southern resident orca whale is strictly liable.

“(2) A person is exempt from subsection (1) of this section where:

“(a) A reasonably prudent person in that person's position would determine that compliance with the requirements of subsection (1) of this section will threaten the safety of the vessel, the vessel's crew or passengers, or is not feasible due to vessel design limitations, or because the vessel is restricted in its ability to maneuver due to wind, current, tide, or weather;

“(b) That person is lawfully participating in a commercial fishery and is engaged in actively setting, retrieving, or closely tending commercial fishing gear;

“(c) That person is acting in the course of official duty for a state, federal, tribal, or local government agency; or

“(d) That person is acting pursuant to and consistent with authorization from a state or federal government agency.

“(3) Nothing in this section is intended to conflict with existing rules regarding safe operation of a vessel or vessel navigation rules.

“(4) For the purpose of this section, ‘vessel’ includes aircraft, canoes, fishing vessels, kayaks, personal watercraft, rafts, recreational vessels, tour boats, whale watching boats, vessels engaged in whale watching activities, or other small craft including power boats and sailboats.

“(5) A violation of this section is a natural resource infraction punishable under chapter 7.84 RCW.”

 



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