Southern Resident Protection
 
 

The Initiative

AN ACT to protect endangered Southern Resident Killer Whales from unnecessary and excessive vessel noise and disturbance; adding new sections to Chapter 10.28 of the San Juan County Code.

BACKGROUND

WHEREAS the Southern Resident Killer Whale population consists of just 75 individuals, near the lowest number observed in recorded history;

WHEREAS the Southern Resident Killer Whales were designated as depleted under the federal Marine Mammal Protection Act in 2003 and were listed as endangered under the federal Endangered Species Act on November 18, 2005, when they numbered 88 orcas;

WHEREAS the Southern Resident Killer Whales were listed as endangered under Canada’s Species At Risk Act in 2003;

WHEREAS the Southern Resident Killer Whales have been and continue to be designated as an endangered species by the Washington State Department of Fish and Wildlife;

WHEREAS only 18 female Southern Resident Killer Whales have given birth in the last 24 years, just 7 additional females are of breeding age, and 4 females are not yet old enough to reproduce;

WHEREAS the Southern Resident Killer Whales have an inherent worth, dignity, interest in, and right to life, autonomy, freedom from harm, safe passage, adequate food, and the continued existence of their species; 

WHEREAS the Southern Resident Killer Whales are an iconic symbol of Washington State and the San Juan Islands, provide substantial scientific, educational, and spiritual benefits to the people of the San Juan Islands, including local Tribes, and visitors;

WHEREAS the Southern Resident Killer Whales suffer from several anthropogenic threats, including lack of food, water pollution, vessel noise and disturbance, and the risk of a catastrophic oil spill;

WHEREAS Southern Resident Killer Whales use sound for hunting, communicating, and detecting threats;

WHEREAS noise from vessels of all sizes interferes with the Southern Resident Killer Whales’ ability to communicate, detect threats, and hunt for their preferred food, salmon;

WHEREAS the impacts of vessel noise and presence increase in magnitude the closer that vessels approach the Southern Resident Killer Whales;

WHEREAS Southern Resident Killer Whales respond to the presence of vessels by altering their behavior in ways that require increased energy;

WHEREAS the marine waters of San Juan County have historically furnished the Southern Resident Killer Whales with their core summer habitat;

WHEREAS San Juan County is an archipelago that includes surrounding marine waters, whose territory is described at RCW 36.04.280 as follows:

            Commencing in the Gulf of Georgia at the place where the boundary line between the United States and the British possessions deflects from the forty-ninth parallel of north latitude; thence following said boundary line through the Gulf of Georgia and Haro Strait to the middle of the Strait of Fuca; thence easterly through Fuca Straits along the center of the main channel between Blunt's Island and San Juan and Lopez Islands to a point easterly from the west entrance of Deception Pass, until opposite the middle of the entrance to the Rosario Straits; thence northerly through the middle of Rosario Straits and through the Gulf of Georgia to the place of beginning.

WHEREAS San Juan County possesses the authority to limit the proximity with which boats and seaplanes on the water are permitted to approach the Southern Resident Killer Whales;

WHEREAS Washington State created a Southern Resident Orca Task Force in 2018 that acknowledged the dire plight of the Southern Resident Killer Whales and recommended, among other actions, an increase in the size of the current protected area and a short-term moratorium on whale watching;

WHEREAS the scientific literature indicates that current vessel guidelines do not allow the Southern Resident Killer Whales to fully utilize their ability to hunt and communicate by sound; and

WHEREAS San Juan County Ordinance No. 35-2007, which addressed the operation of vessels in proximity to Southern Resident Killer Whales, expired in 2009 with the adoption of vessel regulations by the National Marine Fisheries Service. 

 

BE IT ENACTED BY THE PEOPLE OF SAN JUAN COUNTY:

Section 1.  A new Article III, titled, “Operation of Vessels in Proximity to the Southern Resident Killer Whale,” (“Article”) is added to the San Juan County Code, Chapter 10.28 – WATERCRAFT REGULATIONS, as follows:

NEW SECTION.  Sec. 1.1. Purpose and Authority. 

A. Purpose.  This people’s initiative protects the Southern Resident Killer Whale (Orcinus orcas)(“Southern Residents”), listed as endangered under the U.S. Endangered Species Act and Canadian Species At Risk Act, depleted under the U.S. Marine Mammal Protection Act, and endangered under Washington law, from unnecessary and harmful vessel noise and disturbance that impairs their ability to hunt for fish, rest, socialize, and travel. By establishing a scientifically-based vessel-free protected area around the Southern Residents in their core summer foraging habitat, this initiative will increase the range and effectiveness of the Southern Residents’ echolocation, communication, and hearing, and will decrease the amount of energy that the Southern Residents have become required to expend as the number of Vessels in their close proximity has increased substantially. This Article supplements other local, state, and federal efforts to address the need to restore Southern Resident prey species such as threatened salmon, to decrease marine pollution and the risk of oil spill, and to limit noise impacts throughout the Southern Residents’ habitat. This initiative is not intended to penalize operators whose Vessels are approached by the Southern Residents and who could not through diligent observation and effort maintain the prescribed distance, due to factors such as unpredictable travel by the Southern Residents or limited visibility.  

B. Authority.

1. This Article is adopted pursuant to the police power authority granted to San Juan County in Article XI, Section 11, of the Washington Constitution, and informed by the authority granted to states to adopt more restrictive provisions with respect to the taking of endangered species pursuant to 16 U.S.C. § 1535(f) (the Endangered Species Act).

2. The conservation and restoration of the Southern Residents substantially benefits the public health, safety, and welfare of the people of San Juan County.

3. This Article applies to the operation of Vessels only on San Juan County marine waters and only during the times that the Southern Residents are present there.

NEW SECTION.  Sec. 1.2.  Definitions­.

The following terms have the following definitions for the purpose of this Article III.

A. “Commercial fishing” means taking or harvesting fish or fishery resources to sell, barter or trade. “Commercial fishing” does not include commercial sport fishing boats used for charter operations or sport fishing.

B. “Enforcement Officer” means the San Juan County Sheriff or their designee.

C. “Public Vessel” means a vessel that is: (1) owned or demise chartered, and operated by the United States government, the government of the state of Washington or any department thereof, San Juan County or any department thereof, or a government of a foreign country; and (2) not engaged in commercial service.

D. “Vessel” means every description of watercraft, including but not limited to nondisplacement craft and seaplanes, used or capable of being used as a means of transportation on water.

NEW SECTION. Sec. 1.3.  General Guidance and Objectives.

The master and operator of every Vessel in San Juan County has a duty to maintain a lookout for Southern Residents while operating on the marine waters of San Juan County, to observe their direction of travel, and to safely operate the Vessel to maintain a minimum distance of 650 yards from any Southern Residents. In addition, all masters and operators of Vessels must reduce speed in proximity to any Southern Residents to protect them from unnecessary noise and interference.

NEW SECTION.  Sec. 1.4. Unlawful Activity In Proximity To The Southern Residents.

A. Prohibited Conduct. Unless a person falls within one of the exceptions provided in Subsection B of this Section 1.4, they must not in San Juan County marine waters: 

1. Allow a Vessel to be within 650 yards in any direction of a Southern Resident;

2. Position a vessel and disengage the transmission in the path of a Southern Resident so that the Vessel fails to remain at least 650 yards from a Southern Resident. This includes intercepting a Southern Resident by positioning a Vessel so that the prevailing wind, water current, or Southern Resident travel trajectory would bring the Vessel into the path of the Southern Resident; or

3. Operate a Vessel in excess of seven (7) knots over ground at any point located within one-half nautical mile (1013 yards) of a Southern Resident.

B. Exceptions. A Vessel operator does not violate this Section 1.4 if one of the following exceptions applies.

1.  the 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; or

2. the person is 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 includes support Vessels escorting ships in the traffic lanes, such as tug boats; or

3. the person operating the Vessel is lawfully engaged in an activity, including scientific research, and in full compliance with a permit or other authorization from the National Marine Fisheries Service or the Washington Department of Fish and Wildlife; or

4. the person operating the Vessel is lawfully engaged in a treaty Indian or commercial fishery that is actively setting, retrieving or closely tending fishing gear. Vessels in transit are not exempt from subsection A of this section; or

5. the person operating the Vessel is 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 navigational requirements; or

6. the person operating the Vessel is engaging in rescue or clean-up efforts of a beached Southern Resident overseen, coordinated, or authorized by a volunteer stranding network; or

7. the person operating the Vessel is in a narrow channel and cannot change direction for safety reasons or a Southern Resident moves within 650 yards of the Vessel and the operator could not, through reasonable diligence or due to limited visibility, have detected its approach. If the Southern Resident appears within 300 yards of the Vessel, the person operating the Vessel must disengage the transmission of the Vessel if it is a watercraft. If the Southern Resident appears between 300 and 650 yards of the Vessel, or within 650 yards of a non-watercraft Vessel, its operator must move the Vessel away from the Southern Resident to a distance of at least 650 yards from the Southern Resident.

C. Speed Limit for Excepted Vessels. To the maximum extent possible, Vessel operators conducting activities under one of the exceptions above must travel at a speed of 7 knots over ground or less.

D. Burden of Proof. A person who qualifies for an exemption under subsection 1.4.B. of this section may offer that exemption as an affirmative defense, which that person must prove by a preponderance of the evidence.

NEW SECTION.  Sec. 1.5. Presumption.

In any infraction involving a violation of this Article in the presence of a law enforcement officer in a marked vessel, proof that the particular Vessel described in the notice of infraction was in violation of Section 1.4 of this ordinance, together with proof that the person named in the notice of infraction was at the time of the violation the registered owner of the Vessel, constitutes in evidence a prima facie presumption that the registered owner of the Vessel was the person in control of the Vessel at the point where and for the time during which the violation occurred. This presumption may be overcome only if the registered owner of the Vessel states under oath, in a written statement or testimony to the court that the Vessel was, at the time, stolen, or in the care, custody, or control of some person other than the registered owner.

NEW SECTION.  Sec. 1.6. Enforcement.

A. Penalty.  A violation of this Article is a civil infraction and shall carry a fine of $500, not including statutory assessments added pursuant to RCW 3.62.090;

B. Right to Hearing. Nothwithstanding the provisions of any other code, the Enforcement Officer is authorized to issue the civil penalty identified in Subsection A above. With the exception of monetary penalties, and to the extent that there is no conflict with this Article, all such civil violations under this Article shall be governed by the standards and procedures set forth in Chapter 7.80 RCW (Civil Infractions). 

Section 2. Codification.  This initiative shall be codified in chapter 10.28 San Juan County Code.

Section 3.  Severability.  If any provision of this initiative or its application to any person or circumstance is held invalid, the remainder of this initiative or the application of the provision to other persons or circumstances shall not be affected. Remaining sections of the initiative shall be interpreted to give effect to the spirit of the initiative prior to the removal of the portions declared invalid.

Section 4. Effective Date. This initiative shall take effect January 1, 2020.