SAN JUAN COUNTY MARINE RESOURCE COMMITTEE MEETING MINUTES

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San Juan County Marine Resources Committee

Nov. 1, 2000 meeting minutes

Note: This regular meeting of the MRC addresses the question:
"Should San Juan County get involved in managing whale watching?"

Members Present: Laura Arnold, Kelley Balcomb-Bartok, Mark Billington, Bill Brant, Brian Calvert, Terrie Klinger, Rich Osborne, Jim Slocomb, Jean Van Leuven, Dennis Willows

Absent: Jim Capron, Denise Wilk

Panel: Mark Anderson, David Bain, Mike Bennett, Les Cockreham, Kari Koski, Rich Osborne, Jodi Smith, Matt Stratton

Guests: an audience of about 30 people

Chair Jim Slocomb opened the regular meeting of the MRC at 8:30 a.m. in the Garden Room of Key Bank, Friday Harbor. Minutes of the 10/18/00 meeting were approved with the following amendments: MRC member, Rich Osborne, was not present; page 1, "Citizens’ Comments," line 6 should read "MRC webpage has not been updated this year;" page 2, 7, lst line should read "Fran Wilshusen," not Wilson; page 2, 7, 2nd line, should read "...meetings, pending tribal approval;" page 2, 8, 2nd line, should read "...she added that the Marine Habitat Management area designation for Westcott/Garrison Bays is a form of MPA" (not Roche Harbor).

Panelists’ Presentations:

Dr. Rich Osborne, Researcher at the University of Victoria and Science Curator for The Whale Museum, said that he has been involved in whale watching issues here since 1988 and has done whale research for 25 years. In 1988, Rich was invited to be a presenter at the first national workshop on whale watching issues, sponsored by the National Marine Fisheries Service (NMFS) and the Center for Marine Conservation; he produced a questionnaire for whale watch operators to gather data. Follow-up included 26 additional workshops with commercial operators and shoreline residents over the next 6 years, a survey in 1992, and the current study on whale watching by Mark Orams of New Zealand. Rich’s focus has been on the long-term potential impacts to the whales from whale watching activities.

He indicated that, based on a graph ( attached) of "Growth in Commercial Whale Watching in Haro Strait," 62 whalewatching boats were recorded to have been out on a regular basis this season (63 in 1999); numbers peaked in 1997, leveled off, then reached this year’s upper limit. The average number of boats seen off Lime Kiln Lighthouse, from detailed information gathered by Bob Otis between 1991-2000 [ see attached chart, "Average Number of Boats with/without Whales (May-August)"], was 5.4 boats when the whales were not present and 10 boats traveling with whales. In 1997, a peak occurred, with an average of 28.2 boats traveling with the whales. Soundwatch data closely mirrors the Lime Kiln data. The number of ambient boats not engaged in whalewatching in the area has been dropping over the years.

Dr. Osborne referred to the attached graph, "Days/Month Resident Orcas Were Detected in the San Juan / Gulf Islands." He said that, in terms of long-term effects, data indicates that the whales were present in Haro Strait more frequently in 1997, 1998, and 1999, during whale watching season, suggesting that they do not leave the area due to too much whale watching. Dr. Osborne has also looked at long-term historical indicators of impacts on the whales, such as noise exposure and surface disturbance. The whales have had a long history of dealing with heavy boat traffic of different kinds over the last 150 years or so, including long periods of exposure to high levels of fishing and shipping vessel traffic. The number of gill net fishing boats peaked in 1900 and began to decline in 1950. Rich said that whale watching, then, is not the first exposure this population has had to underwater noise. [See "Decadal Indicators of Underwater Noise Exposure for Southern Resident Killer Whales 1850-1990," attached.]

NMFS Special Agent, Mike Stratton, said that he works in law enforcement out of the Bellingham office, as one of two agents responsible for most of Puget Sound out to Neah Bay. He introduced Les Cockreham from the Seattle office.

Special Agent Cockreham explained that the enforcement arm for NMFS (NOAA, Department of Commerce) is concerned with crimes or violations of the national Marine Mammal Protection Act, the Endangered Species Act, the Magnusson Act, and other federal statutes. Brent Norberg, as the Northwest Marine Mammal Coordinator for NMFS, is concerned with strandings and the care and welfare of the animals. Cockreham said that NMFS is considering the possibility of regulatory enforcement of whale watching and asked that commercial operators and others present today meet with him after the session to discuss concerns, ask questions, and exchange names and contact information. His telephone number is (206) 526-4301.

Jodi Smith, researcher with Orca Conservancy, said that, for the past two years, she has conducted studies on the west side of San Juan Island, between Pile Point and Edwards Point, using theodolite tracking to record the position of whales and boats traveling through the area. She has collected data on relative speeds, interactions (including harassment), and other, more measurable impacts. In terms of existing regulations, Jodi noted that there seems to be less adherence to the 1/4-mile restriction this year by whale watch operators, although complete data is not yet in. She is hoping to continue her work into a third season.

Dr. David Bain, researcher at the University of Washington, NMFS, and the Whale Museum, said that he has been studying the northern resident orcas for the last 17 years. He presented overheads (appended here) on the short- and potential long-term effects/mechanisms of whale watching (also appended is an Abstract of a June, 2000 paper on "Short- and Long-term Effects of Whale Watching on Killer Whales in British Columbia," by Trites and Bain. Short-term effects include changes in swimming velocity, respiratory patterns, surface behavior, and activity cycles. More recent studies suggest potential long-term mechanisms that include energy flux (e.g. reduced food intake from vessel noise masking whales’ ability to detect sounds or distracting them from foraging), stress ("a vague mechanism"), Polyaromatic Hydrocarbons (PAH’s, from e.g. smog, unburned fuel, believed to be responsible for whale deaths due to the Valdez spill), and, vessel collisions.

Dr. Bain displayed a chart, "Population Growth Rates," that has led him to change his opinion on the impacts of whale watching on the whales. Generally, populations have continued to increase despite high levels of vessel traffic; he added that it apparently doesn’t matter what the food availability is, when even a relatively large population shows a steady linear growth rate (2-3% per year for the northern orcas). Despite the fact that long-term possible impacts cannot be readily demonstrated at this time, Bain suggests that steps can be taken to mitigate some of the short-term effects, which can be substantial.

In looking at annual population counts, he referred to the October, 2000 paper, "Population Trends of Southern Resident Killer Whales from 1960-1999," by Balcomb and Bain (appended here). The population (J, K, and L pods) peaked with around 97 whales, before captures for public display began in 1967. By 1973, at the end of the captures, there was a drop to 70 individuals. This was followed by a steady increase up from 1980 to 1990, then 2 more steep declines (11% and 15%) up to present time (population about 85 whales). Bain said that potential causes for the three declines include losing reproductive females during capture, reduced food supply, mortality and reproductive problems due to toxic chemical exposures, and, disturbance by extensive whale watching traffic. All these impacts will continue to be studied, as will the effect of climate change. In summary, Bain said that since the whales have not left the area nor displayed behavioral differences, whale watching does not seem to be the serious effect expected.

Mike Bennett, president of the Whale Watch Operators Association Northwest, said the good news is that we all have the same goal--to bring back a healthy system that supports all marine life. He said the Association is concerned with the decline and wants to take a proactive role in finding out why the decline and what can be done about it. Local operators come to know the individual whales on a personal, day-to-day basis, Bennett said, adding that J-18’s recent death was sobering to everyone. He said the impact of whale watching, an emotional issue, needs to be put in perspective. Bennett reiterated that studies indicate that the primary impact may be lack of prey, with toxic loads a factor, and commercial vessel presence a possible, but distant, third. Salmon levels and pollution are problems not quickly resolved or easily regulated. He would like to see the Association’s guidelines followed by all boaters and said that the Soundwatch approach is "fantastic." He suggested putting more energy and funding into such programs that are working.

Kari Koski, Soundwatch Coordinator since 1997, has been driving the boat since 1994. The program "watches the people watching the whales," observing boater and whale behavior and interactions between them. Soundwatch informs private boaters on the whale watching guidelines and attempts to provide an education in stewardship on the water (brochure and informational packets are distributed). Trained Soundwatch volunteers also keep track of the industry to assure that operators are following the Association’s voluntary guidelines.

The program has established a no-boat zone, around the west side of San Juan Island, from Henry Island to Eagle Point; commercial operators have agreed to stay 1/4 mile from the shoreline and it is hoped that other boaters will also comply as standard practice. There is, also, a 1/2-mile no-boat zone around Lime Kiln State Park to give shoreline watchers a better opportunity to see whales; it also protects the whales’ nearshore feeding and benefits local residents. She feels the Soundwatch program is working for the most part and its presence on the water should continue as a reminder of the guidelines.

Mark Anderson, Director of Orca Relief, said that the non-profit started 3 years ago and has raised funds and circulated a petition asking the BOCC to enact an ordinance to make the "chasing" of whales in San Juan County illegal. He then defined acceptable private or commercial whale watching activity, as opposed to "chasing," as finding the whales, cut the boat engines, spend time with them, and then go away. Mark said that the group’s charter is to find out what is killing the orcas and will fund science towards that end. He said the petition (1300 signatures) has been the most popular one ever done in the county, emphasizing that there is nothing wrong with whale watching and that, in fact, the petition could save the industry. Mark said that "we are losing the whales, they are dying and leaving the area" and without Soundwatch the situation would be even worse.

Although he agreed that the lack of salmon is probably the biggest impact, the remedy will take decades. He said that at the current rate of attrition, the population will be gone in 3-5 years. Mark added that Dr. Doug McMaster, of NMFS, has stated that toxins are not the primary cause, nor is the take. He said that we need to do something now, with federal involvement, to hope to reduce the whales’ death rate and the one way open to us immediately is to reduce the stress factor caused by boat interactions.

Mark challenged Dr. Osborne’s assumption based on his charts that the whales are not moving; he said that they are so dependent on food that there are ever more likely to be where there are few fish. He agreed, however, that the noise impact is critical for whales, an effect that cannot yet be measured. He said that having 60-65 boats "on the whales" every day through the season is a new experience. He ended with an appeal to everyone, "Don’t chase them."

Audience questions:

1. A resident that lives north of Pile Point said, with regard to federal intervention, that as an amateur observer he counted 120 boats at one time this summer that were "very orderly," in the presence of a Coast Guard cutter, as opposed to the usual "crashing all over each other" to experience the whales. NMFS Special Agent Stratton explained that the Coast Guard is a separate entity from NOAA, which in comparison, is a very small agency that doesn’t have enough staffing to be out watching whale watch boats every day, although the effort would undoubtedly improve the situation.

2. An audience member wanted to correct Mark Anderson’s statement that there have been 60+ whale watching boats out everyday this season, saying that statistics show the number to be closer to 20-23. He wondered if the researchers here today would agree that it is a quantum leap to make an association that the whales are dying and are moving to California because they were gone for a month this summer. Both Dr. Bain and Dr. Osborne agreed that August has never been the high time for whale presence here and that graphing shows that whale counts and days present were significantly lower this year but that this is not historically unusual.

3. Another audience participant said that she has been whale watching for 14 years and has had a hydrophone installed for 9 years. She has noticed a big difference in whale sounds between fast and slow boats and large and small boats. She feels the noise issue needs to be taken seriously. She asked if MRC could discuss speed limit in these waters, noting that the speed seems to be arbitrary. Faster boats typically emit higher frequency decibels of noise, she said. She also wondered that in the event the county restricted whale watching from boats off Lime Kiln, would private owners open their property to watchers from land?

4. Can MRC recommend that Soundwatch be additionally funded? This was the question of a man who said he recognizes the need for groups to work together to save the whales. He said that the presence of Soundwatch creates "gentlemanly behavior out there" and that the Whale Watch Operators Association should continue to support it.

5. To the question for Dr. Osborne, "Based on what we know now, do you feel that our whale (southern Orca) population is on its way to extinction?" he answered, "Yes, in my opinion."

6. Question to Mark Anderson: Would adoption of the whale watching guidelines as law protect the whales? Anderson said that although the guidelines do a good job, there are impacts other than boat distance from whales that can’t be ignored, e.g. noise affecting their hunting, navigating (affects fish); whales breathing in huge volumes of air polluted with PAH’s. His guess is that the death rate would not be improved by passing the guidelines as law.

7. Question to Dr. Osborne: If whale watching was banned and the ban was enforced so that no boats were permitted around whales, would they die anyway? Dr. Osborne said yes, reiterating that these waters are totally polluted and that it takes a lifetime to bioaccumulate these toxins to contaminated levels that affect them. He added that he personally feels that we are hiding from this reality. (Someone pointed out that an MMPA representative emphatically negated the pollution hypothesis.)

8. Mr. Anderson was asked if, given that enforcement is already a problem, would a new law be enforceable? He answered that he feels that current laws are impossible to enforce because of the proof issue; he believes whale chasing can be documented, making a ban enforceable. He clarified his definition of chasing. military, pleasure craft, sailboats

9. Another question to Mr. Anderson: What about boaters out there for other reasons (e.g. sailboats, pleasure craft, military)? This audience member feels that there could be great benefit from whale watchers getting more complete education from the multi-million dollar whale watching industry as part of their experience; he said they need the full story in order to enact change.

10. A woman asked Chair Jim Slocomb which regulatory agency would implement enforcement of such a county regulation. Jim responded that there wasn’t a clue at this point but the MRC was very interested in the next step...if and how the county should get involved and whether there are policy and regulation models out there to be looked at.

11. Jodi Smith was asked about the distance between whales and boats in her theodolite studies.

12. Noting that jet ski ban litigation costs to the county were enormous, a participant wondered who would pay for developing and litigating the proposed new regulation. He said he’d like to see MRC and County money/efforts go towards more proactive education efforts, such as Soundwatch, rather than to the inevitable multi-million dollar lawsuit defense. Mark Anderson answered that his petition proposal would keep the whale watch industry in business, so that grounds for suit would not be an issue. He added that non-profit Orca Relief funds have been offered for such county suit defense. Anderson said that if the whales disappeared from these waters, the costs to San Juan County would be enormous whereas court costs would be relatively tiny.

13. Jodi Smith was asked if there was any evidence that there might be a new pattern of whales showing preference for being within the quarter-mile zone. Ms. Smith said that it is too soon in the study to know since measurement data is mostly historical at this point; recording of this season’s measurements is underway.

14. A question for the NMFS representatives: Do you see any other area within the Puget Sound jurisdiction with as high an emotional level as here with respect to marine resources? Special Agent Cockreham said that , yes, the public and agencies, including biologists, are starting to notice that there are serious problems. He added that whales are not the only marine mammal showing negative effects of human interaction.

15. How do the local whale watching guidelines compare to the federal? Cockreham said that the federal system does not include, e.g.,100-yard restriction; it does define "harm," "harassment," and "take" in general terms, making enforcement of regulations to protect a resource frustrating, both to concerned citizens and the federal agencies. He said there may be more enforceable measures coming.

16. An audience member said that he has noticed drastic population decline in important local fish species--cod, hake, rockfish, herring. He added that this is a system-wide depression of resources in this area and orcas, he said, are just a part of this overall decline of the health of this system. (Applause). Mark Anderson said we would all probably agree to those statements and, with these animals brought to the brink of their existence through those mechanisms, any stress increases their mortality rate. He said that was why it was important to bring them away from the brink in ways that were possible to control now, taking 10 years rather than 30 or 40 years for recovery.

Questions From MRC Members:

Chair Slocomb asked if San Juan County, as a policy decision, wanted to see greater NMFS presence on the water, would it have to sue for failure to comply? "Is there a less onerous mechanism that inter-jurisdictional jurisprudence for getting federal resources here?" Agent Bennett said, "Let us carry that message back, up to the chain of command, reminding that the regional Agency office is very small."

Brian Calvert commented on the "millions NOAA spent in Neah Bay killing whales." He said, "If the Agency used just half of it here to save these whales, we probably wouldn’t have to have this meeting." (Applause.)

Terrie Klinger, referring to Ken Balcomb’s chart, wondered if the whales had rebounded from the low point after take, and, if so, is it still possible for them to rebound now? Mark Anderson said rebound after take is common but this decline is due to something completely different so that recovery assessment is impossible; he said the whales could be brought down to zero. Dr. Osborne said that there are interpretations of the 1980-84 decline suggesting a residual effect from the taking of females; he said that even population biologists are unclear on this. He also pointed out that there has been a recent drastic drop in the Chinook salmon population, as there was in 1984. Dr. Bain referred to the historical birth / mortality records, which suggest that the dip is part of the story but there were an extraordinary number of female births during the 1970’s; also, the El Nino ocean current/climate occurrence in the 1980’s saw species decline in general. He added that the lower calf production now could be reproductive impairment due to toxins.

Bill Brant commented that this serious problem cannot be solved unless the salmon runs are brought back.

Terrie Klinger asked Bain for his interpretation of the "generalized logistic graph" and there was discussion on "carrying capacity." Bain said that carrying capacity dropped a lot around 1990, when there was a big population growth, to pre-take levels; the steep decline in growth rate should level out at carrying capacity, assuming that the effects of toxins are irrelevant.

Kelly Balcomb-Bartok asked Dr. Bain what the optimal number of orcas in this population would be under current habitat conditions. Bain’s answer was "78."

Panelist closing remarks:

Dr. Osborne said he agrees there are multiple factors, beyond whale watching, involved in the issue. He said that a 16-hydrophone array has been installed on the west side of San Juan Island since August for active investigation of underwater noise in Haro Strait; Osborne said noise study is critical to the whole question. He added that it could be productive for San Juan County to get involved in helping to manage whale watching but the mechanism used would be important. He suggested, as a first step, endorsement of the existing whale watch operators’ guidelines and enforcement of other existing protection regulations (e.g. of the Marine National Wildlife Refuge in San Juan County that are currently not enforced.

NMFS Special Agent Cockreham said that help at the local level was appreciated; he expects contact with Soundwatch to continue and some limited investigations are ongoing. He asked for the chance to voice local concerns to agency superiors.

Mike Bennett said that the county could not effectively get involved in regulating whale watching--a complex, international issue. He hopes for federal follow-up.

Jodi Smith said she would rather err on the side of caution but sound science is needed behind any regulations and funding for management.

Dr. Bain said it is important not to "lynch the whale watch industry." He agreed that the voluntary, cooperative guidelines are the way to go. Science can identify some areas where whale watching has impacts and can suggest ways to minimize those impacts. He education of private boaters, as well as increased food abundance, as significant aspects of the issue.

Kari Koski agreed with Dr. Osborne that county endorsement of existing guidelines would encourage all members of the Association to follow them strictly. She said operators have an immense opportunity, and responsibility, to educate large numbers of people, including private boaters on the water and to be a model for compliance. Koski would like to see the BOCC consider adopting those guidelines. The Canadian Department of Fisheries and Oceans and other federal agencies are playing an active role in seeking solutions to the problem and she would like to see more U.S. federal presence and enforcement. She emphasized that Soundwatch is not an enforcement group but will continue to do what it does best--to educate people to do the right thing for the right reasons; the program welcomes any help.

Mark Anderson said that the status quo is that the whales here have been dying at an alarming rate for five years now. He does not want to see the status quo continue and said no one would benefit from that; San Juan County endorsement of existing guidelines would not be sufficient to change the status quo. He asked if people were really content "to not make changes and watch the whales go extinct." He concluded with a plea for doing anything we can to save this population.

MRC Discussion/Action:

Bill Brant reiterated that all efforts should go to restoring salmon runs because the whales must be starving right now. He felt there is nothing for the county to get involved in.

Mark Billington said that there was too much at stake for the county not to get involved; he suggested that whale watch operators, scientists, and concerned petitioners get together to look at methods (mechanisms) to address the issue.

Terrie Klinger agreed that efforts should continue and that, most importantly, a formal request be made to the federal government for increased support.

Laura Arnold repeated that some action needs to be taken.

Dennis Willows said the county should be actively involved and that some progress is being made with the use of the voluntary guidelines and programs like the Bottom Fish Recovery Program, including forage fish, could become examples to the whole region. He suggested reevaluating the current voluntary guideline on spatial separation, with the possible increase of that separation. He encouraged continued support of Soundwatch to make those guidelines work and advocated quick and nimble action.

Brian Calvert said there are aspects of the problem that cannot be altered--e.g. 30-year old females missing from the population, due to capture, that could have been reproducing. Pollution, food, and boat issues are also difficult to address, although, he said, the county is involved in restoration of the food chain through the bottomfish and forage fish recovery programs. He thinks the no chasing rule would be unenforceable but the county should look at more support for Soundwatch ("the most bang for the buck"), perhaps offering tax incentives to Soundwatch contributors. Calvert noted that both Canadian operators and Customs are players in this issue, since Canadian boats can sit 10’ off shore in these waters, with engines cut, without Customs’ clearance.

Jean VanLeuven agreed that increased Soundwatch and NMFS presence be supported. She further suggested that the issue of less engine noise close to the whales be addressed, that all operators be encouraged to better comply with the guidelines, and that forage fish and salmon restoration efforts be recognized as very important.

Kelly Balcomb-Bartok reiterated that Soundwatch and the Whale Watch Operators Association efforts be encouraged. He said that the petition indicates that at least 1300 residents feel the county needs to get involved in some way. He also welcomes more NMFS presence on the water.

Dr. Osborne, as an MRC member, said that the Soundwatch program has had the goal of maintaining the status quo but operators are being pushed to develop stricter and stricter self-regulating guidelines ("adaptive management"). He is concerned that if the county and federal government came down with really hard regulations, the process could be frozen at the federal level.

Dr. Willows agreed that depending on federal government to try to get things changed is a slow, tedious process; he advocates quick local response taking advantage of capabilities to make adaptive changes.

Chair Slocomb summarized that there seemed to be committee consensus that San Juan County get involved...but "how" is the question.

Motion: Jim Slocomb proposed, and Kelly Balcomb-Bartok seconded, that MRC modify next year’s Work Plan to include an active work item and to examine to establish some policy, approach, or procedure that the County Commissioners might formally adopt.

Discussion: Brian Calvert suggested a work session with the BOCC early next year. Laura Arnold said that December meeting’s agenda should include Work Plan review and revision.

The motion was unanimously approved.

The meeting was adjourned at 10:35 a.m.

Helen Venada
Recording Secretary