For the purposes of this chapter, the following definitions apply:

(1) Commercial whale watching.

"Commercial whale watching" shall be defined as 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.

(2) Commercial whale watching business.

"Commercial whale watching business" means a business that engages in the activity of commercial whale watching.

(3) Commercial whale watching operator.

"Commercial whale watching operator" means a person who operates a motorized or sailing vessel engaged in the business of whale watching.

(4) Paddle tour.

"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.

(5) Paddle tour business.

"Paddle tour business" means a business that conducts paddle tours.

(6) Paddle guide.

"Paddle guide" means a person who conducts guided tours on behalf of a paddle tour business. The term paddle guide includes anyone who directs the movement or positioning of any nonmotorized commercial whale watching vessel(s) involved in a tour.

(7) Commercial whale watching license.

"Commercial whale watching license" means a commercial whale watching business license or a commercial whale watching operator license as defined in this section.

(a) "Commercial whale watching business license" means a department-issued license to operate a commercial whale watching business.

(b) "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.

(8) Paddle tour license.

"Paddle tour license" means a paddle tour business license or a paddle guide license as defined in this section.

(a) "Paddle tour business license" means a department-issued license to operate a business that conducts paddle tours.

(b) "Paddle guide license" means a department-issued license to conduct commercial guided paddle tours on behalf of a paddle tour business.

(9) Vessel.

"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.

(a) "Commercial whale watching vessel" means any vessel that is being used as a means of transportation for individuals to engage in commercial whale watching.

(b) "Motorized commercial whale watching vessel" shall be defined as any vessel with an engine being used as a means of transportation for individuals to engage in commercial whale watching, regardless of whether the engine is in use. This definition includes sailboats with inboard or outboard motors.

(c) "Nonmotorized vessel" or "paddle tour vessel" shall be defined as any vessel without an engine being used as a means of transportation for individuals to engage in a paddle tour. This definition includes human-powered watercraft such as kayaks and paddleboards.

(10) Group of southern resident orcas.

"Group of southern resident orcas" is defined as a single southern resident orca or an assemblage of southern resident orcas wherein each member is within one nautical mile of at least one other southern resident orca. Any individual(s) farther than one nautical mile constitutes a separate group.

(11) Vicinity.

"Vicinity" is defined as 1,000 yards from all southern resident orcas in the group. References to "vicinity" in this chapter do not permit operators to approach a southern resident orca closer than the statutorily defined distances in RCW 77.15.740.

(12) Encounter. Each time any commercial whale watching vessel or nonmotorized vessel operating under a license identifies and/or enters within 1,000 yards of a southern resident orca will count as one encounter associated with that license.

(13) Automatic identification system (AIS). AIS refers to a maritime navigation safety communications system standardized by the International Telecommunication Union, adopted by the International Maritime Organization, that:

(a) Provides vessel information, including the vessel's identity, type, position, course, speed, navigational status and other safety-related information automatically to appropriately equipped shore stations, other ships, and aircraft;

(b) Receives automatically such information from similarly fitted ships, monitors and tracks ships; and

(c) Exchanges data with shore-based facilities.

(14) Inland waters of Washington.

"Inland waters of Washington" means Puget Sound and related inland marine waters, including all salt waters of the state of Washington inside the international boundary line between Washington and British Columbia, and lying east of the junction of the Pacific Ocean and the Strait of Juan de Fuca, and the rivers and streams draining to Puget Sound as mapped by water resource inventory areas 1 through 19 in WAC 173-500-040 as it exists on July 1, 2007.

(1) License requirements.

(a) A commercial whale watching business license is required for commercial whale watching businesses as defined in this chapter.

(b) A paddle tour business license is required for paddle tour businesses as defined in this chapter.

(c) A commercial whale watching operator license is required for commercial whale watching operators as defined in this chapter.

(d) A paddle guide license is required for paddle guides as defined in this chapter.

(2) Applicants must be at least 16 years of age and possess a driver's license or other government-issued identification number and jurisdiction of issuance.

(3) Applicants for a commercial whale watching business license or paddle tour business license must be authorized to conduct business within the state of Washington. However, 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.

(4) The commercial whale watching or paddle tour business license application must include the following information regarding the whale watching or paddle tour business:

(a) The applicant must identify the business name, type of business (i.e., sole proprietor, partnership, corporation), and for all associated business owner(s): Full name, association to the business, email address, telephone number, and Social Security number if the business owner is a United States citizen or resident.

(b) The applicant must identify and confirm the business is registered to conduct business within the state by providing the unified business identifier (UBI) number. Canadian commercial whale watching businesses are exempt from this requirement.

(5) Any business license applicant must also designate, as applicable, all commercial whale watching operators authorized to operate a motorized or sailing vessel or all paddle guides authorized to guide a paddle tour on behalf of the business. The applicant must identify each operator's or paddle guide's full name and date of birth.

(6) On the commercial whale watching business license application, the applicant must designate all commercial whale watching vessels to be used while engaging in commercial whale watching.

(a) The applicant must indicate either motorized or sailing vessels on the application.

(b) The applicant must select the appropriate option for the passenger capacity on each designated vessel.

(7) Commercial whale watching operator license applicants and paddle guide license applicants must provide their full name, date of birth, Social Security number (U.S. citizens and residents only), gender, hair, eyes, weight, height, physical address, mailing address, email address, and telephone number.

(8) An application submitted to the department shall contain the applicant's declaration under penalty of perjury that the information on the application is true and correct.

(9) Applications must be completed and submitted online through the department-provided commercial licensing system, or by mailing the application to:

Washington Department of Fish and Wildlife

Attn: Commercial License Sales

P.O. Box 43154

Olympia, WA 98504-3154

(10) If the required fields are blank or omitted from the application, then the department will consider the application to be incomplete, and it will not be processed.

(1) In order to qualify for a fee waiver, an organization's relevant commercial whale watching or marine paddle tour activities must be solely for bona fide nonprofit educational purposes.

(2) In order to receive a fee waiver, the organization must submit documentation to the department:

(a) Demonstrating the organization's nonprofit status; and

(b) Explaining the relevant whale watching or paddle tour activities and the educational purpose of the activities.

(3) Each year after the initial application, when applying for an annual commercial whale watching and/or paddle tour business license, the organization must:

(a) Affirm that all relevant activities are for nonprofit educational purposes; and

(b) Ensure that all documentation remains up-to-date, and submit revised documentation if needed.

(4) Individuals that solely operate on behalf of an organization that qualifies for a fee waiver are eligible for a fee waiver for their operator or paddle guide license.

(a) Operator or paddle guide licenses issued under a nonprofit educational fee waiver may not be used by the individual to conduct for-profit activities. The license will be limited to nonprofit educational activities.

(b) In order to engage in for-profit whale watching or paddle tour activities, any operator or paddle guide operating under a license obtained by fee waiver must forfeit their license and apply and pay the relevant fees for a new operator or paddle guide license.

(5) In order to obtain a fee waiver for an operator or paddle guide license, the applicant must:

(a) Be designated as an operator or paddle guide on the qualifying organization's business license; and

(b) Not be designated as an operator or paddle guide for any for-profit commercial whale watching or paddle tour business.

(6) The applicant must indicate at the time of their application that they intend to apply for a fee waiver.

(7) Fee waivers may be issued in the form of reimbursements.

(8) Organizations and individuals who conduct commercial whale watching or paddle tour activities solely for nonprofit educational purposes are required to follow all laws and rules that apply to for-profit commercial whale watching and paddle tour licensees, including the requirements outlined in this chapter.

(1) Upon lawful application, a commercial whale watching license or paddle tour license in the form of a license card or certificate will be issued by the department.

(2) The fee to replace a license card that has been lost or destroyed is $20.

(1) Any person that holds a commercial whale watching business license or paddle tour business license may designate other persons associated with the business to act on behalf of the license holder to update the business information within the organization's account.

(2) A commercial whale watching business license holder or paddle tour business license holder may designate an unlimited number of operators or paddle guides, respectively, so long as each individual obtains the license required under WAC 220-460-070.

(3) A commercial whale watching business license holder or paddle tour business license holder must maintain an accurate record with the department of operators authorized to operate motorized vessels or paddle guides authorized to guide paddle tours on behalf of the business. Commercial whale watching or paddle tour business license holders may add operators or paddle guides to the list associated with the business license by entering the operator's or paddle guide's full name and date of birth in the business account through the commercial licensing system.

(1) RCW 77.65.615 requires commercial whale watching businesses to designate the motorized vessel(s) that will be used for commercial whale watching. It is unlawful to engage in commercial whale watching activities unless:

(a) The licensee has designated all commercial whale watching motorized, including sailing, vessels to be used;

(b) The department has issued a commercial license to the licensee showing the motorized vessel so designated; and

(c) The person conducting commercial whale watching activities on behalf of the business has the appropriate documentation in physical possession.

The operator of a motorized or sailing vessel must have both the commercial whale watching business license listing the vessel and their individual operator license for the current calendar year in physical possession.

(2) The licensee does not have to own the vessel being designated on the license.

(3) For motorized or sailing vessels, the commercial whale watching business licensee must provide applicable documentation numbers such as a hull identification number (HIN), current United States Coast Guard or Transport Canada certification inspection documentation, and/or a vessel registration number.

(4) It is unlawful to engage in paddle tour activities unless the person conducting paddle tour activities on behalf of the business has the appropriate documentation in physical possession.

The guide of a commercial paddle tour must have both their individual paddle guide license and the paddle tour business license for the current calendar year, or a printed or digital scan thereof, in physical possession.

The holder of a commercial whale watching business license may designate an additional vessel on the license within the calendar year if the license holder submits to the department an application that identifies the vessel proposed to be designated and any other information required by the department.

(1) A person may operate a motorized or sailing vessel engaging in commercial whale watching only if:

(a) The person holds a valid commercial whale watching operator license issued from the department;

(b) The vessel is designated in a valid commercial whale watching business license issued from the department;

(c) The operator is designated on the underlying commercial whale watching business license; and

(d) The person has both the commercial whale watching business license listing the vessel and their individual operator license for the current calendar year in physical possession.

(2) A person may lead a guided paddle tour on behalf of a paddle tour business only if:

(a) The person holds a valid paddle guide license issued from the department;

(b) The paddle tour business has a valid paddle tour business license;

(c) The paddle guide is designated on the underlying paddle tour business license; and

(d) The person has both their individual paddle guide license and the paddle tour business license for the current calendar year, or a printed or digital scan thereof, in physical possession.

(3) Only an individual at least 16 years of age may hold an operator license or paddle guide license.

(4) An individual may hold only one commercial whale watching operator license. Holders of an operator license may be designated on an unlimited number of commercial whale watching business licenses.

(5) An individual may hold only one paddle guide license. Holders of a paddle guide license may be designated on an unlimited number of paddle tour business licenses.

Commercial whale watching and paddle tour licenses expire at midnight on December 31st of the calendar year for which they are issued. Licenses may be renewed annually upon application and payment of the prescribed license fees.

(1) It is unlawful for a commercial whale watching operator or paddle guide to violate any of the restrictions in RCW 77.15.740.

(2) Licenses issued by the department under this chapter are not an exemption under RCW 77.15.740 (2)(c).

(3) The rules and requirements outlined in this chapter regarding southern resident orcas apply to commercial whale watching and paddle tour activity in the inland waters of Washington.

(1) It is unlawful for operators of motorized commercial whale watching vessels to operate one-quarter nautical mile from shore from Mitchell Point to Cattle Point on the west side of San Juan Island or within one-half nautical mile of Lime Kiln Point State Park. Paddle guides and all vessels on guided paddle tours must stay within 100 yards of shore within this zone except when safety conditions preclude it.

(2) Modifications or additions to closed areas may be issued by the department by rule. Violation of such rules shall be unlawful.

(1) Tours involving any nonmotorized watercraft used for the purposes of paddle tours, such as kayaks, are subject to these requirements. Such watercraft constitute paddle tour vessels and are referred to as "vessels" in this chapter. Regardless of the type of nonmotorized watercraft involved, the person operating on behalf of the business to conduct the tour is referred to as a " paddle guide" in this chapter.

(2) Paddle guides must prevent all vessels in their tour group from disturbing southern resident orcas. All vessels in the tour group must adhere to the following requirements:

(a) It is unlawful to launch if southern resident orcas are within 1,000 yards of the launch location.

(b) Vessels are prohibited from being paddled, positioned, or waiting in the path of a southern resident orca. If a southern resident orca is moving towards a vessel, the vessel must immediately be moved out of the path of the whale.

(c) If vessels inadvertently encounter a southern resident orca, they must immediately be moved as close to shore as possible and secured, or be rafted up close to shore or in a kelp bed, and paddling shall cease until any and all orcas have moved to at least 400 yards away from the vessels. Rafting up is defined as manually holding vessels close together, maintaining a tight grouping. Once any orcas are moving away from the vessel(s) and are at least 400 yards away, all paddlers must either remain rafted/secured until the whales are at least 1,000 yards away or must paddle in the opposite direction of travel from the orcas until all vessels are 1,000 yards away from the orcas.

(1) An automatic identification system (AIS) must be fitted aboard all motorized commercial whale watching vessels. The AIS must be capable of providing information about the vessel (including the vessel's identity, type, position, course, speed, and navigational status) to state and federal authorities automatically. Operators must maintain the AIS in operation at all times that the vessel is conveying passengers for a fee.

(2) All commercial whale watching and paddle tour license holders must complete annual training from the department on marine mammals, distances on the water, impacts of whale watching on marine mammals, and southern resident orca-related rules and reporting.

(a) At completion of training, license holders must demonstrate adequate understanding of course materials.

(b) It is unlawful to operate a commercial whale watching vessel or guide a tour of nonmotorized vessels without completing the training for the current calendar year.

(3) All commercial whale watching and paddle tour license holders are strongly encouraged to maintain accurate logs on each instance a vessel operating under a license encounters southern resident orcas and submit copies of the logs to the department within 24 hours of the encounter.

(4) Content of southern resident orca encounter logs:

(a) Logs should, at minimum, include the business name; vessel operator or paddle guide name; vessel name; the location(s) of southern resident orcas encountered; and the time and duration of the encounter.

(b) If applicable, license holders are encouraged to log details regarding encounters within 1,000 yards of southern resident orcas, including time and duration within 1,000 yards vicinity of southern resident orcas; time and duration within 400 yards of southern resident orcas; and measures taken to determine whether the whales were southern resident orcas.

(c) License holders are also encouraged to log qualitative details of southern resident orca encounters including whale identification, whale behavior and health, other vessel behavior, and any operator behavior, including contact with other boaters or government entities, and resulting outcomes.

(5) All motorized commercial whale watching license holders must report accurate, complete sighting information to the WhaleReport application for the whale report alert system (WRAS), or to a successor transboundary notification system designated by the department that is adopted by the international shipping community in the Salish Sea, immediately upon encountering a southern resident orca.

(1) Commercial whale watching or paddle tour license holders in violation of WAC 220-460-090 may be issued a notice of infraction punishable under chapter 7.84 RCW that carries a fine of $500, not including statutory assessments added pursuant to RCW 3.62.090.

(2) Commercial whale watching or paddle tour license holders out of compliance with WAC 220-460-100, 220-460-130, or 220-460-140 may be issued a notice of infraction that carries a fine of up to $500, not including statutory assessments added pursuant to RCW 3.62.090.

(3) Nothing in this chapter prohibits the filing of criminal charges for violations of RCW 77.15.815 in lieu of issuance of a notice of infraction.

If any provision of the chapter or its application to any covered party, person, or circumstance is held invalid, the remainder of the chapter or application of the provision to other covered parties, persons, or circumstances is not affected.