Status of legislation related to Southern Resident orca recovery

Go to: https://app.leg.wa.gov/billinfo/ for additional information.

Strengthening Oil Transportation Safety

SB 5578/HB 1578 (Governor’s request legislation)—Reducing threats to Southern Resident orcas by improving the safety of oil transportation.

• Specifies tug escort requirements for oil tankers of a certain size.
• Requires tug escorts for certain sized oil tankers and articulated tug barges transited through Rosario Strait and connected waterways.
• Requires the Board of Pilotage Commissioners to adopt rules for tug escorts in Puget Sound.
• Authorizes the Department of Ecology (Ecology) to adopt rules for an emergency response towing vessel to be situated in the San Juan Islands area.

Status of SB 5578: Substitute SB 5578 has been referred to the Senate Ways & Means committee.

Effect of changes made in Substitute SB 5578:

• Clarifies that tug escorts are not required for vessels providing bunkering or refueling services.
• Clarifies tribal representation for rulemaking and the Salish Sea Shared Waters Forum.

Status of HB 1578: The House passed Substitute HB 1578 on a vote of 70 to28, and the bill is now in the Senate Environment, Energy, & Technology Committee, where it received a public hearing on March 19.

Effect of changes made in Substitute HB 1578:

• Exempts vessels providing bunkering or refueling services from tug escort requirements adopted in statute or by rule.
• Clarifies that new tug escort requirements may only apply to oil tankers of between 5,000 and 40,000 deadweight tons.
• Clarifies that new tug escort requirements only apply to towed waterborne vessels or barges, with the exception of requirements applicable to oil tankers or articulated tug-barges. 
• Requires Ecology to provide a synopsis of changing trends in vessel traffic to the Legislature by September 1, 2020, and to consider this synopsis during rulemaking for tug escorts. 
• Directs Ecology and the Board of Pilotage Commissioners to consult with potentially-affected, federally recognized Indian tribes (rather than consulting with tribes who have usual and accustomed fishing rights in the areas subject to rulemaking).
• Expands the scope of tribal governments and other entities that Ecology is directed to partner with to discuss shared funding of an emergency response towing vessel.

Increasing Prey Abundance

SB 5580/HB 1579 (Governor’s request legislation)—Implementing recommendations of the Southern Resident Orca Task Force related to increasing Chinook salmon and forage fish abundance.

• Removes bass, channel catfish, and walleye from statutory classification as game fish.
• Requires a fishing license to fish for smelt.
• Directs the Department of Fish and Wildlife (DFW) to first seek voluntary compliance from a hydraulic project proponent if a violation of the hydraulic code has occurred or is about to occur.
• Authorizes the DFW to offer technical assistance to correct violations. In cases of violations of the hydraulic code, the bill authorizes the DFW to issue notices of correction, notices of violation, stop-work orders, or notices to comply to hydraulic project proponents.
• Removes the requirement that the DFW issue permits with or without conditions for single-family residential bulkheads and rock walls.
• Authorizes the DFW to apply for an administrative inspection warrant to inspect project sites to verify compliance, or if there is probable cause to believe a violation is occurring or has occurred.
• Increases civil penalty for hydraulic code violations from $100 per day per violation to $10,000 per violation.
• Authorizes the DFW to disapprove applications for up to 1 year, or until all penalties and notices are paid and complied with, for persons who have failed to comply with either a final stop-work order or notice to comply, or failed to pay a civil penalty.

Status of SB 5580: The Senate Agriculture, Water, Natural Resources, & Parks Committee held a public hearing on SB 5580 on February 5. No further action has been taken.

Status of HB 1579: The House passed Second Substitute HB 1579 on a vote of 59 to 39, and the bill is now in the Senate Agriculture, Water, & Natural Resources Committee, where a proposed striking amendment received a public hearing on March 19.

Effect of changes made in Substitute HB 1579:

• Removes the provision declassifying bass, walleye, and channel catfish as "game fish,” and directs the DFW to adopt rules to ease bag limits for these species. 
• Requires a license to fish for saltwater smelt instead of all smelt.
• Creates a hydraulic project pre-application that a person may file with the DFW to determine whether a project requires a complete application for a hydraulic project permit. The DFW must provide tribes and local governments a review and comment period of 7 calendar days for pre-applications. If the DFW determines that a complete application is required, the applicant would then be required to submit a “complete application,” as defined in statute, and the DFW would process the permitting decision.
• Provides that the new hydraulic code enforcement provisions do not apply to hydraulic projects that have received a forest practices hydraulic project permit from the Department of Natural Resources (DNR). 
• Removes the provision declaring a violation of the hydraulic code to be a public nuisance.

Effect of changes made in Second Substitute HB 1579: Makes the following changes to stop-work order, notice to comply, and penalty provisions of substitute bill:

• Specifies that stop-work orders and civil penalties must be authorized by senior or executive DFW personnel.
• Directs the DFW to initiate rulemaking to identify the appropriate level of senior and executive staff to authorize stop-work orders and civil penalties based on the financial effect on the violator and the scope and scale of the impact of the violation to fish life and habitat.
• Changes the criteria under which the DFW may issue a notice to comply or stop-work order to when there is a violation of the hydraulic code or a deviation from a hydraulic project permit and immediate action is necessary to prevent continuation of or to avoid more than minor harm to fish life or habitat.
• Provides that a stop-work order may require that a project proponent take corrective action to prevent, correct, or compensate for adverse impacts to fish life and fish habitat. 
• Revises the information that stop-work orders and notices to comply must include.
• Adds that stop-work orders and notices to comply must contain the following:
  • A citation of the specific law or rule that applies to the violation
  • The date by which the DFW requires compliance
  • Notice of ways to contact any technical assistance
  • Notice of when, where, and to whom a request for extension of time to achieve compliance must be filed 

Vessel noise and disturbance

SB 5577/HB 1580 (Governor’s request legislation)—Concerning the protection of Southern Resident orcas from disturbance by vessels.

• Increases the distance within which a vessel or other object may not approach Southern Resident orcas.
• Provides additional temporary approach limits for commercial whale-watching vessels, and requires the DFW to report on the effectiveness of the approach limits.
• Establishes a limited-entry commercial whale-watching license, sets fees for the license, and requires the DFW to report on the license program.

Status of SB 5577: The Senate passed Second Substitute SB 5577 on a vote of 46 to 3, and the bill is now in the House Rural Development, Agriculture, & Natural Resources Committee, where received a public hearing on March 20.

Effect of changes made in Substitute SB 5577:

• Changes the distance within which it is unlawful to approach, or to fail to disengage the transmission of a vessel, to 300 yards of a Southern Resident orca and specifies that it is unlawful to position a vessel within 400 yards behind a Southern Resident orca.
• Deletes the provision establishing a temporary 650-yard approach limit of Southern Resident orcas for commercial whale-watching vessels.
• Provides that the commercial whale-watching license is not a limited-entry license and changes the license fees.
• Creates an alternate operator license for a designated alternate operator to operate a commercial whale-watching vessel.
• Specifies that commercial whale-watching without a permit, or violating DFW rules regarding commercial whale-watching, is a misdemeanor.
• Requires the DFW to establish rules implementing the commercial whale-watching license program that are designed to reduce the daily and cumulative impacts to Southern Resident orcas. It also requires the DFW to involve the public, industry, and other interested parties in any rulemaking process.
• Requires the DFW to convene an independent science panel to review the most current and best available science regarding impacts to Southern Resident orcas by small vessels and commercial whale-watching vessels.
• Adds sustainable whale-watching to the topics the statewide tourism marketing plan must cover.

Effect of changes made in Second Substitute SB 5577:

• Establishes an application fee of $75 for the alternate operator license of a commercial whale-watching vessel.
• Provides a process to substitute a motorized or sailing vessel designated on a commercial whale-watching license for a fee of $35 (instead of the applicable vessel fee to designate an additional vessel). The vessel operator must submit an application to the DFW with the $35 fee, in addition to the $105 application fee. The DFW may only change a vessel designation once per calendar year.
• Provides that the DFW must adopt rules regarding the number of commercial whale-watching operators that may view Southern Resident orcas at the same time.
• Codifies the new license in the commercial license chapter, rather than in the limited-entry license chapter.
• Makes the DFW’s rule adoption requirements of the bill subject to the availability of funding appropriated.

Status of HB 1580: The House passed Second Substitute HB 1580 on a vote of 78 to 20, and the bill is now in the Agriculture, Water, & Natural Resources Committee.

Effect of changes made in Substitute HB 1580:

• Changes the distance within which it is unlawful to approach, or to fail to disengage the transmission of a vessel, from 200 yards to 300 yards of a Southern Resident orca and specifies that it is unlawful to position a vessel within 400 yards behind a Southern Resident orca.
• Deletes a temporary 650-yard approach limit for commercial Southern Resident orca whale-watching vessels.
• Provides that the commercial whale watching license is not a limited-entry license, maintains the $75 application fee, and changes the license fees as follows: 
  • The annual commercial whale-watching license fee is $200, plus annual fees for designating motorized or sailing vessels, and for kayaks. 
  • The annual fees per motorized and sailing vessel are based on the number of passengers per vessel, on a similar schedule as in the underlying bill. 
  • The annual fees for designating kayaks are based on the number of kayaks.
  • Creates an alternate operator license, with an annual fee of $200, for a designated alternate operator to operate a motorized or sailing commercial whale-watching vessel. 
• Specifies that commercial whale-watching without a permit, or violating the DFW rules regarding commercial whale-watching, is a misdemeanor, and doing so within 1 year of the date of a prior conviction is a gross misdemeanor.
• Requires the DFW to establish rules to implement the commercial whale-watching license program that are designed to reduce the daily and cumulative impacts to Southern Resident orcas. 
• Authorizes, instead of requires, the DFW to consider the use of an automatic identification system for monitoring and compliance.
• Requires the DFW to involve the public, industry, and other interested parties in any rulemaking process.
• Adds whale-watching rules and approach distance regulations to the items the DFW must analyze and report on to the Governor and the Legislature. 
• Requires the DFW to convene an independent science panel, before January 1, 2021, to review the most current and best available science regarding impacts to Southern Resident orcas by small vessels and commercial whale-watching vessels. The DFW must use the review in the rulemaking process and to adaptively manage the commercial whale-watching program.
• Adds sustainable whale-watching to the topics required in the statewide tourism marketing plan.

Effect of changes in Second Substitute HB 1580:

• Establishes an application fee of $75 for the alternate operator license.
• Provides a process to substitute a motorized or sailing vessel designated on a commercial whale-watching license for a fee of $35 instead of the applicable vessel fee to designate an additional vessel. The vessel operator must submit an application to the DFW with the $35 fee and a $105 application fee. The DFW may only change a vessel designation once per calendar year.
• Provides that the DFW must adopt rules regarding the number of commercial whale-watching operators that may view Southern Resident orcas at the same time.
• Codifies the new license in the commercial license chapter, rather than in the limited-entry license chapter.
• Makes the bill null and void if specific funding is not provided in the omnibus appropriations act.

Go to: https://app.leg.wa.gov/billinfo/ for additional information.