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Originally published Thursday, August 16, 2012 at 9:43 PM

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Despite law, no fines have been issued for whale-space violators

The federal agency responsible for helping protect Washington's killer whales has yet to impose any fines on boaters who come within 200 yards of the orcas.

Seattle Times staff reporter

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For more than a year boat owners have been warned to stay at least 200 yards from Puget Sound's killer whales, or risk being fined.

But the federal agency that enforces the new rules said Thursday it will not fine a boat owner who did just that off Orcas Island this week.

In fact, an environmental group claims it has reported more than 1,600 similar violations since the law went into effect in May 2011, and yet no boater has been fined by the National Oceanic and Atmospheric Administration (NOAA).

Warnings and educational literature are what NOAA is opting for now as they acquaint more people with the law, said spokesman Brian Gorman. Fines may still play a role in the future, Gorman said.

Whale advocates, though, want to see more enforcement to try to revive the whale population.

The Puget Sound orcas, known as the southern resident population, were declared an endangered species in 2005. Counting a calf spotted in May, there are 88 whales in three pods called J, K and L. Research shows that the physical presence and sound of vessels are partly responsible for the species' population decline.

"An enforcement presence on the water will change people's behavior," said Jenny Atkinson, executive director of The Whale Museum in Friday Harbor. "But people telling them about the regulations is not the only way we're going to do this right."

The fines can be steep: Under the Marine Mammal Protection Act, civil penalties can reach $11,000, and fines under the Endangered Species Act could be as high as $32,500, Gorman said.

"Our intention has been all along, for the first two years, to depend more on warnings rather than coming along like gangbusters," Gorman said. "We want to figure out if people are paying attention to the rules and we only have one year of data so far."

On Wednesday, a 25-foot boat was spotted within the 200-yard buffer zone near Orcas. The Coast Guard responded and gave the boaters a warning, leaving the decision on whether to fine them up to NOAA.

Gorman said part of the reason federal rules protecting killer whales were strengthened was because boaters weren't responding to the educational-outreach approach. He said NOAA is hoping that knowledge of the possible fine results in an improved response, which may show up in data collected this year.

The data on violations come to NOAA through the U.S. Coast Guard, Department of Fish and Wildlife, and private organizations such as the Soundwatch Boater Education Program based on San Juan Island, Gorman said.

While there are no set number of boats scheduled to patrol for violators, he said, the groups try to increase presence on the water during peak whale-watching times such as weekends and late summer.

Because patrolling for such violations is so varied, this year's data may not even be an accurate representation of whether boater education or the threat of higher fines will influence behavior, said Fred Felleman, board member for The Whale Museum in Friday Harbor.

"Not only are we being less protective of these whales, we're putting gaps in data and it's thrown a monkey wrench into a lot of research," Felleman said.

Jenny Atkinson, executive director of The Whale Museum, said she thought NOAA would shift from the educational approach to tighter enforcement this summer but slashed federal and state funding may have delayed that.

Until an enforcement presence increases in Puget Sound waters, Atkinson said, she doesn't have much faith that boaters will respect the regulations.

"It's like if in a 55 mph zone nobody tickets at 60, people say 'This is something we can get way with,' " Atkinson said. "But the first time you see a cop waiting in a speed trap, you say 'Oh.' "

Atkinson said enforcement involves not only funding more boats on the water, but there needs to be enough funding for NOAA to fight possible court challenges should it fine boaters.

While boating can be detrimental to the whales, the lack of food — namely salmon — is pressing as well.

"While I don't think whale watching is the worst thing happening out there, it's the most addressable problem," Felleman said. "It takes a lot longer to bring the salmon back."

Soundwatch, a primary collector of violation data, has also been spread thin as they have started working in Canadian waters as well. Their Canadian partner program, Straitwatch, has had its funding cut so much that it can no longer be out on the water.

"This year there's less money, less education and less enforcement — and that's not a good combination," Felleman said.

Material from The Associated Press was included in this report.

Alexa Vaughn: 206-464-2515 or avaughn@seattletimes.com.

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