August is Whale Watching Month and with the waters filling up with summer traffic, it seems timely to have a review of the correct behavior around whales.

There is a web of guidelines and rules, both at federal and state level, dictating the appropriate behavior of humans around marine mammals.

The legislation is nuanced, as both Jenny Aitkinson, director of the Whale Musuem, and Janet Sears, spokeswoman for NOAA, admit. Confusion arises, they say, with the difference between “guidelines” and “laws.” Here is a breakdown of both:

Federal level:

Marine mammals are protected under the Marine Mammal Protection Act of 1972, with larger whales including the orca whales additionally protected under the Endangered Species Act. The latter, says Sears, does not count as an “extra layer of protection,” but entails different procedures for processing infractions.

Under these laws it is illegal to harass or “take” marine mammals. Where it becomes more complex, is that the human behavior that causes harassment, boating too close to the whales for example, is not illegal, and is subject only to guidelines.

These guidelines include, among many, a recommended 100-yard distance between vessels and marine mammals, and 1000-yard distance between aircraft and marine mammals.

So technically on a federal level it is not illegal to go closer than 100 yards to a whale. What is illegal, however, is if that behaviour results in provable whale harressment.

Those who violate the Marine Mammal Protection Act can face fines up to $100,000 or imprisonment up to a year, or both.

State Level:

Under state law it is illegal to:

• Approach within 100 yards of a killer whale.

• Intercept a killer whale by placing a vessel or other object to remain in the path and within 100 yards of the killer whale.

• Fail to immediately disengage a vessel’s transmission within 100 yards of a killer whale.

• Harass any marine animal.

The mandatory 100 yard distance is not confined to crafts on the surface of the water. Therefore an airplane that dips below 100 yards above sea level around Whales is in violation of the law.

• Violation of the law is a civil infraction that carries penalties of up to $1,025.

If an infraction is proved then it is possible to be charged at both the state, and the federal level.

Kari Koski, coordinator for the Soundwatch Program, says that one factor of difference between the two jurisdictions is that state law forces one to take personal responsibility for avoiding whales. It is concerned only with identifying crafts that are too near to whales. Whale harassment does not need to be proven, as on a federal level. “It’s your responsibility to get yourself out,” she says.