On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity). 86 Fed. Reg. 1134 (January 7, 2021). The rule, which lists an effective date of February 8, 2021, represents the latest in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA. If it stands under the incoming administration, this rule will have important implications for the wind energy industry, among other sectors.
Historical debate over the meaning of “take” under the MBTA
The MBTA is a criminal statute enacted in 1918 and is one of the oldest wildlife protection laws in the United States. The Act covers more than 1,000 bird species, including approximately 90 percent of all birds occurring in North America, many of which are common and abundant species. The MBTA makes it a crime for any person to “pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell, offer to purchase, purchase, … ship, … transport, … carry, … receive … at any time, or in any manner, any migratory bird, … or any part, nest, or egg of any such bird.” 16 U.S.C. § 703. Responsibility for enforcing the MBTA falls on USFWS, an agency within the US Department of Interior (DOI).
As we explained in previous articles on the subject (USFWS Makes Another Move to Exclude Incidental Take from the Migratory Bird Treaty Act; De-Criminalizing the Inevitable: Some Hope for Rationalizing the MBTA?; The Other Shoe Drops on the MBTA; US Fish & Wildlife Service To Seek Dismissal of Suits Challenging MBTA Legal Opinion), uncertainty has prevailed for years regarding the scope of the take prohibition under the MBTA. DOI and USFWS have attempted in recent years, first under the Obama Administration and then the Trump Administration, to clarify the meaning of “take” in a manner that is consistent with each Administration’s interpretation of legislative intent, notions of constitutional due process and practical policy considerations.
The original purpose of the MBTA, as the Service explains in the preamble to the final rule, was to regulate the extreme over-hunting of migratory birds, largely for commercial purposes, that had occurred over the years. 86 Fed. Reg. at 1137. As such, the Act was initially interpreted as covering only intentional takings of birds. The Service points out in the preamble to the rule that it was not until the 1970s, more than 50 years after adoption of the MBTA, that federal prosecutors began to enforce the MBTA for incidental actions, even though there had been no legislative change to support the new approach to enforcement. 86 Fed. Reg. at 1139. Since that time, persons engaging in an activity likely to result in a take, however unintentional and otherwise lawful, have faced the risk of criminal prosecution, subject to the exercise of enforcement discretion by the Service.
Meanwhile, the Federal Courts of Appeal have split on the meaning of “take,” with opinions from the Fifth and Eighth Circuits holding that the MBTA does not prohibit incidental take and opinions from the Second and Tenth Circuits holding that it does. For this reason, risk of enforcement under the MBTA has often depended on the state in which an action occurs that could result in incidental take of migratory birds.
On December 22, 2017, the Solicitor’s Office of DOI issued a detailed legal opinion, known as M–37050, siding with the Fifth and Eighth Circuits and concluding that the MBTA’s take prohibition applies only to “direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing, to human control,” and does not apply to take that is incidental to an otherwise lawful actions that results—even directly and foreseeably—in the death of a protected bird. The opinion reversed a prior DOI opinion (M-37041) issued in January 2017 by the outgoing Obama administration concluding that the MBTA did prohibit incidental take of migratory birds. In April 2018, the USFWS modified its enforcement policy to conform with the January 2017 legal opinion and issued a guidance memorandum clarifying that “the MBTA’s prohibitions on take apply when the purpose of an action is to take migratory birds, their eggs, or their nests,” and that “[c]onversely, the take of birds, eggs or nests occurring as a result of an activity, the purpose of which is not to take birds, eggs or nests, is not prohibited under the MBTA.”
Lawsuits filed in federal district court by environmental groups and eight states challenging DOI’s December 2017 legal opinion were consolidated under the case styled Natural Resources Defense Council et al. v. U.S. Department of the Interior et al., Case No. 18-CV-4596 (VEC) (S.D.N.Y.). On August 11, 2020, the district court granted the plaintiffs’ summary judgment motions and vacated M–37050 on the ground that it was contrary to the plain meaning of the MBTA and departed from the Service’s longstanding enforcement policy without providing notice and opportunity for public comment.
USFWS published the proposed version of the January 7 rule while this lawsuit was pending. 85 Fed. Reg. 5915 (Feb. 3, 2020). The regulatory text set forth in the final rule, which is to be codified at 50 C.F.R. §10.14, states as follows:
The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.
The Service explains in the preamble to the final rule that the rule is intended to resolve the inconsistency and uncertainty regarding MBTA enforcement which has resulted in what the Service describes as a “convoluted patchwork of legal standards[,] all purporting to apply the same underlying law,” and to establish “a national standard that sets a clear, articulable rule for when an operator crosses the line into criminality.” 86 Fed. Reg. at 1142. The Service also explains that the rule serves to further policy goals of promoting otherwise lawful economic activity, which, in the Service’s view, “should not be functionally dependent upon the ad hoc exercise of enforcement discretion.” 86 Fed. Reg. at 1142. Under the new rule, the Service asserts that businesses will have “better information for planning projects and achieving goals.” 86 Fed. Reg. at 1160.
Implications for Wind Energy Facilities
Wind energy facilities have long faced the risk of criminal prosecution under the MBTA for avian fatalities resulting from collisions with wind turbines blades. Because there currently is no regulatory program under the MBTA to authorize incidental take of protected birds, such as through a permit, wind energy facilities face the prospect enforcement any time an injury or fatality has resulted from normal operations mitigated only by the exercise of the Service’s discretion not to prosecute. Wind facility operators may enhance the likelihood they will benefit from favorable enforcement discretion by following the Service’s Land-Based Wind Energy Guidelines (2012), which are voluntary guidelines setting out best practices to avoid incidental take of protected birds. However, compliance with these guidelines does not provide enforceable legal protections. The guidelines explicitly state that “it is not possible to absolve individuals or companies from MBTA” and that the Service may only consider compliance with the guidelines in exercising its discretion whether to refer an individual or company to the Department of Justice for prosecution. See U.S. Fish and Wildlife Service, Land-Based Wind Energy Guidelines 6 (Mar. 23, 2012). In fact, USFWS has taken enforcement action under the MBTA against the operators of wind projects that followed key aspects of the voluntary guidelines for the take of golden eagles and other migratory birds killed by collisions with turbine blades, so it should not be assumed that wind energy facilities will get a pass on MBTA enforcement simply due to fact that they provide renewable energy that is desired to achieve other environmental protection goals. Indeed, as the Service noted in the preamble to the final rule, “[I]t is literally impossible for individuals and companies to know exactly what is required of them under the law when otherwise-lawful activities necessarily result in accidental bird deaths,” because ”[e]ven if they comply with everything requested of them by the Service, they may still be prosecuted, and still found guilty of criminal conduct.” 86 Fed. Reg. at 1141.
In recent years, because of the circuit split, the risk of liability for a wind farm under the MBTA depended largely on the federal circuit in which the facility is located. Since DOI issued its December 2017 legal opinion and the Service modified its enforcement policy to conform to that opinion, wind energy facilities have faced little risk of prosecution under the MBTA, regardless of location, although the long-term viability of that legal opinion standing alone has always been in doubt. Now that the opinion has been codified by agency rule, DOI’s interpretation of “take” stands on somewhat firmer ground, although it is subject to reversal by the incoming Biden Administration. Because the final rule will take effect after Inauguration Day 2021, the Biden Administration could place a regulatory freeze on the rule for up to 60 days. It is considered likely that the Biden Administration will implement regulatory freezes for all pending rules (as every other administration has done in recent years). The Biden Administration could also issue a proposed rule to further delay the effective date or to replace the rule with a new rule, but it is unlikely that any such rulemaking could be completed before the 60-day freeze expires and the rule takes effect. Once the new rule goes into effect, any change would require new notice-and-comment rulemaking or a successful court challenge, unless Congress takes action. Now that Democrats have won the Presidency and have gained majorities in both the House of Representatives and the Senate, it is possible that the January 7 rule will be rescinded under the Congressional Review Act (CRA, 5 U.S.C. §§ 801-808). The CRA allows Members of Congress to introduce a “joint resolution of disapproval” of rules finalized during a specified lookback period at the end of a presidential administration (which would encompass the January 7 MBTA rule), and if Congress approves the resolution by a simple majority of each chamber and the resolution is signed by the President (or Congress successfully overrides a presidential veto), the rule to which the resolution applies is rescinded. A rule rescinded through the CRA may not be reissued in “substantially the same form” without subsequent statutory authorization. (The CRA does not define “substantially the same form” and the federal courts have not ruled on the meaning of that phrase in the context of the CRA.) With or without the CRA, the January 7 MBTA rule is likely to be short-lived, as the pendulum appears poised to swing back on the interpretation of the scope of the take prohibition under the MBTA.
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- Native American Law
- Natural Gas
- Natural Gas Act
- Natural Gas Leak Abatement Program
- Natural Gas Pipeline Certification
- Natural Gas Pipelines
- Natural Resource Damages
- Natural Resources
- Navigable waters
- NCCIC
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- NEC
- NECIs
- NEI
- Neil Chatterjee
- NELs
- NEPA
- NEPA Policy
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- NERC
- NESCOE
- Net-Zero Emissions
- Net-Zero Greenhouse Gas Emissions
- New Chemicals Review Program
- New Rule
- New Source Review
- New York
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- NGA
- NGO
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- NHTSA
- NIETC
- nitrogen dioxide
- NMFS
- No Exposure Certification Identification Number
- No-Action Letter
- NOAA
- NOI
- NONA
- Nonapplicability Identification Number
- Nonattainment
- Nonpoint Source
- North American Electric Reliability Corporation
- North Dakota
- Notice
- Notice of Proposed Rulemaking
- NPDES
- NPDES Delegation
- NPDWR
- NPL
- NSPS
- NSR
- nuclear
- nuclear energy
- NWP
- NY PSC
- Obama
- Occupational Safety and Health Act
- Occupational Safety and Health Administration
- OCE
- OECA
- OEHHA
- OEJECR
- Office of Civil Enforcement
- Office of Cybersecurity Energy Security and Emergency Response
- Office of Electricity Delivery & Energy Reliability
- Office of Enforcement and Compliance Assurance
- Office of Enforcement and Compliance Assurance (OECA)
- Office of Environmental Justice and External Civil Rights
- Office of Federal Register
- Office of Information and Regulatory Affairs
- Office of Management and Budget
- Office of Natural Resources
- Office of Water
- Offshore Energy
- Offshore Platforms
- Offshore Wind
- Offshore wind energy
- Ohio
- Oil
- Oil & Gas
- Oil and Gas
- Oil and Gas Production
- Oil and Gas Wastewater
- Oil Pipelines
- Oil Pollution Act
- OIRA
- Oklahoma
- OMB
- One Federal Decision
- One Federal Plan
- OPA
- OSHA
- Outer Continental Shelf
- OW
- Ozone
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- Packaging
- Paperwork Reduction Act
- Paris Agreement
- Paris Climate Accord
- Paris Climate Agreement
- Particulate Matter
- Partido Revolucionario Institucional
- Passaic River
- PATH Act
- PBT
- PCBs
- PEMEX
- Penalties
- Penalty
- PennEast Pipeline
- Pennsylvania
- Perfluoroalkyl
- Permian Basin
- Permitting
- Pesticide Devices
- Pesticides
- Pete Buttigieg
- Petition
- Petition for Rulemaking
- Petitions for Objection
- PetraNova
- Petrochemical Regulation
- Petróleos Mexicanos
- Petroleum Products
- PFAS
- PFAS Action Plan
- PFAS in Products State Law Tracker
- PFAS Reporting Rule
- PFAS Strategic Roadmap
- PFBA
- PFBS
- PFNA
- PFOA
- PFOS
- PHMSA
- Physicians for Social Responsibility
- Pimphales Promelas
- PIP
- Pipe Manufacturing
- Pipeline
- Pipeline and Hazardous Materials Safety Administration
- Pipeline Attacks
- Pipeline Construction
- Pipeline Safety
- Pipelines
- PIPES
- Plastic
- Plastic Carryout bag
- PNAS
- POCSR
- Point Source
- Point Source Discharge
- Policy
- Policy Statement
- Pollution
- Pollution Exclusion
- Pollution Liability
- Pollution Prevention for Healthy People and Puget Sound Act
- Polyalkyl
- Polyfluoroalkyl
- Port of Los Angeles
- Porter-Cologne Water Quality Control Act
- Potentially Responsible Party
- POTW
- PRA
- Practical Law
- Precedent
- Preconstruction Authorizations
- Preemption
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- Preliminary Injunction
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- Presidential Transition
- PRGs
- PRI
- Priebus
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- Produced Water
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- Production Cuts
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- Project Development
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- Proposition 65
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- Protecting Our Conserved Lands Act of 2019
- PRP
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- Pruitt Task Force
- PSC
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- PSH
- PSM
- Public Comment
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- Publicly Owned Treatment Works
- Pumped Storage Hydropower
- PURPA
- Quality Assurance Plan
- R-Project Transmission Line
- Racing Vehicles
- RAGAGEP
- Railroad Commission
- Railroad Commission of Texas
- Railroad Commission of Texas (RRC)
- Rapanos
- RBI
- RCRA
- RCRA Subtitle D
- REACH
- Reasonable Progress Plans
- RECLAIM
- Reconsideration
- RECs
- Redevelopment
- Refinery
- Reform
- Reforma Energética
- Regional Clean Air Incentives Market
- Regional Clean Hydrogen Hubs
- Regional Greenhouse Gas Initiative (RGGI)
- Regional Haze
- Regional Water Quality Control Boards
- Registration Evaluation Authorization and Restriction of Chemicals
- Regulation
- Regulation S-K
- Regulation S-X
- Regulations
- Regulatory
- Regulatory Agenda
- Regulatory Freeze
- Regulatory Guidance
- Regulatory Programs
- Regulatory Reform
- Regulatory Review
- Reliability
- Reliability Safety Valve
- Remediation
- Removal Action
- Renewable
- Renewable Energy
- Renewable Energy Certificates
- Renewable Energy Portfolio
- Renewable Fuel Standards
- Renewable Portfolio Standard
- Renewables
- Renewals
- Reporting
- Request for Information
- ReRED
- Rescind
- Resilience of the Bulk Power System
- Resource Conservation and Recovery Act
- Responsible Business Initiative
- Restoration
- Restriction of Hazardous Substances
- Retail
- Retailers
- Retained
- Retroactivity
- Return on Equity
- RFS
- RHA
- Richard Glick
- Rigs to Reefs
- RIN
- Ripeness
- Risk and Technology Review
- Risk Assessment
- Risk Evaluation
- Risk Management
- Risk Management Plan
- Risk Management Program
- Risk Management Regulations
- Rivers and Harbors Act
- RMP
- Roadmap Release
- Roanoke River Basin Association
- Robert Powelson
- ROE
- ROEs
- RoHS
- Roundtable on Sustainable Palm Oil
- Roundup
- Royalties
- RPS
- RRBA
- RRC
- RTR
- Rule 14a-8(i)(7)
- Rule 65(c)
- Rulemaking
- Russia
- SAB
- Sacred Sites
- SAFE
- Safe Drinking Water Act
- Safe Harbor
- Safe Harbor Regulation
- Safe Harbor Warning
- Safer Consumer Products
- SAFETY Act
- Safety Management System
- San Francisco Bay Regional Water Quality Control Board
- SASB
- SaskPower’s Boundary Dam Unit 3
- SB 1371
- SCAQMD
- Science
- Science Advisory Board
- Science Advisory Board (SAB)
- Scope
- Scope 1
- Scope 2
- Scope 3
- Scott Pruitt
- SCOTUS
- SDWA
- SEC
- Section 10
- Section 104 Request
- Section 114 Request
- Section 179B(b)
- Section 208 Request
- Section 308 Request
- Section 4
- Section 401
- Section 404
- Section 408
- Section 45Q
- Section 5
- Section 6(b)
- Securities Act
- Securities and Exchange Commission
- Securities and Exchange Commission (SEC)
- Securities Law
- Seismicity
- Seminole Rock
- Senate
- Senate Energy and Natural Resources Committee
- Senator Lamar Alexander
- SEP
- SEPs
- Services
- Settlements
- Sewage
- Shareholder Lawsuits
- Shutdown
- Sierra Club
- Significant Figures
- Significant Guidance
- Significant New Use Rule
- SIP
- Smelter
- SNUR
- Social
- Social Media
- Solar
- Solid Waste
- South China Sea
- South Coast Air Quality Management District
- SPCC
- Species
- Spill Prevention Control and Countermeasure Rule
- SSB 5135
- SSM SIP Call
- Stabilization Clause
- Standing
- Standing Rock Sioux
- Stare Decisis
- State
- State Administrative Appeals
- State Air Pollution Control Board
- State Constitutions
- State Environmental Quality Review Act
- State Implementation Plan
- State Law
- State Water Resources Control Board
- States
- Statute of Limitations
- Statutory Authority
- Statutory Interpretation
- Stormwater
- Strategic
- Straw Proposal
- Subrogation
- sulfur dioxide
- Sunset Review
- Superfund
- Supplemental Environmental Projects
- Supply Chain
- Supreme Court
- Supreme Court of Texas
- Supreme Court of the United States
- Surface Mining Act
- Surface Water Discharge
- Susan Bodine
- Sustainability
- Sustainability Accounting Standards Board
- Sustainable Development Goals
- Sustainable Investing
- SWDA
- Switzerland
- SWRCB
- Tailings Storage Facility
- Take
- Take Prohibition
- Takings
- Task Force on Climate-Related Financial Disclosures (TCFD)
- Tax
- Tax Credits
- Tax Cuts and Jobs Act
- Tax Reform
- Taxonomy Regulation
- TCEQ
- TCI
- Temporary Policy
- TERP
- Texas Alliance of Energy Producers
- Texas Commission on Environmental Quality
- Texas Legislature
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- Thailand
- THC
- The European Commission
- The Mikado
- The Treasury Department
- The Water Infrastructure Improvements Act
- the WIIN Act
- Third Circuit
- Threatened Species
- Title V
- TMDL
- TMDLs
- TNALs
- Toledo
- Tolling Order
- Total Maximum Daily Load
- Toxic Chemicals
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- Toxic Substances Control Act (TSCA)
- Toxics
- Toxics Release Inventory
- Transcos
- Transition
- Transmission
- Transparency
- Transport
- Treasury
- Treaty Rights
- Trends
- TRI
- Tribal Rights
- Tribes
- Trump
- Trump Administration
- TSA
- TSCA
- TSF
- TWDB
- U.S. Army Corps of Engineers
- Ultimate Net Loss
- UNCLOS
- Underground Injection Wells
- Underground Storage Tank
- UNFCCC
- Unified Agenda
- United Airlines
- United Nations
- United Nations Framework Convention on Climate Change
- Urgenda
- US Army Corps of Engineers
- US Chemical Safety Board
- US Climate Alliance
- US Court of Appeals for the Ninth Circuit
- US Customs and Border Protection
- US Department of Agriculture
- US Department of Justice (DOJ)
- US Environmental Protection Agency
- US Fish and Wildlife Service
- US FWS
- US SAFETY Act
- US Securities and Exchange Commission
- US Securities and Exchange Commission (SEC)
- US Supreme Court
- USACE
- USDA
- USDOT
- USFWS
- USMCA
- Utilities
- utility
- vapor intrusion
- Vapor Recovery Units
- VCP
- venting
- Veto
- Village of Old Mill Creek. v. Star
- Vineyard Wind
- Virginia Clean Economy Act
- Virginia Community Flood Preparedness Fund
- Virginia Department of Environmental Quality
- Virginia State Corporation Commission
- vision of Corporation Finance
- VOCs
- Volatile Organic Compounds
- Voluntary Cleanup Program
- Voluntary Remediation
- Waiver
- Waiver Period
- Warnings
- Washington
- Waste
- Waste Discharge Identification Number
- Waste Electrical and Electric Equipment
- Waste Permitting
- Wasted Food
- Wastewater
- Wastewater Treatment
- Water
- Water Quality Certification
- Water Quality Criteria
- Water Regulation
- Water Reuse
- Water Supply and Management
- Water Systems
- Waterfront
- Waters
- Waters of the United States
- WDID
- WEA
- WEEE
- Well Blowout
- Well Control Rule
- WET Tests
- Wetlands
- Whole Effluent Testing
- Wholesale Electricity
- WildEarth Guardians
- Wildfire
- Wind
- Wind Energy
- Wind Energy Area
- wind farms
- Winning on Reducing Food Waste Initiative
- Winter v. NRDC
- Withdrawal or Reinstatement
- World Bank Group Equator Principles
- Worst-Case Discharge
- WOTUS
- WQBELs
- WQC
- Wyoming
- Zero Emissions
- Zero-Emissions Vehicle Initiative
- Zinke
Authors
- Yaniel Abreu
- Elizabeth E. Aldridge
- Walter J. Andrews
- John J. Beardsworth, Jr.
- Nancy B. Beck, PhD, DABT
- Jordan L. Bernstein
- Timothy E. Biller
- George Borovas
- Lawrence J. Bracken II
- Shannon S. Broome
- Karma B. Brown
- Samuel L. Brown
- F. William Brownell
- Courtney Cochran Butler
- Julia J. Casciotti
- Michelle G. Chan
- E. Carter Chandler Clements
- Abigail Contreras
- Benjamin Y. Cooper IV
- Christopher J. Cunio
- Alexandra B. Cunningham
- Andrea DeField
- Meredith Doswell
- Douglas L. Dua
- Deidre G. Duncan
- Frederick R. Eames
- Clare Ellis
- Latosha M. Ellis
- Susan S. Failla
- Geoffrey B. Fehling
- Andrea Field
- Hannah Flint
- Steven C. Friend
- Kevin E. Gaunt
- Andrew G. Geyer
- Erin Grisby
- Elisabeth R. Gunther
- Steven M. Haas
- Alexandra Hamilton
- Patrick Jamieson
- Kevin W. Jones
- Dan J. Jordanger
- Ryan T. Ketchum
- Sami M. Khan
- Jonathan H. Kim
- Scott H. Kimpel
- Charles H. Knauss
- Garrett Kral
- J. Pierce Lamberson
- Lucinda Minton Langworthy
- Jaclyn E. Lee
- Matthew Z. Leopold
- Charlotte Leszinske
- Brian R. Levey
- Michael S. Levine
- Elbert Lin
- Eric R. Link
- Nash E. Long
- David S. Lowman, Jr.
- Phyllis H. Marcus
- Jeffrey N. Martin
- Lorelie S. Masters
- Patrick M. McDermott
- Kerry L. McGrath
- Robert J. McNamara
- Michael J. Messonnier, Jr.
- Jennifer MikoLevine
- Todd S. Mikolop
- Angela Morrison
- Michael J. Mueller
- Eric J. Murdock
- Ted J. Murphy
- William L. Newton
- Henry V. Nickel
- Paul T. Nyffeler, PhD
- Peter K. O’Brien
- G. Michael O’Leary
- Evangeline C. Paschal
- Kate Perkins
- Shemin V. Proctor
- Shawn Patrick Regan
- Myles F. Reynolds
- Doris Rodríguez
- Brent A. Rosser
- Christian Rudloff
- Rachel Saltzman
- Arthur E. Schmalz
- Penny A. Shamblin
- Michael R. Shebelskie
- George P. Sibley, III
- Joseph C. Stanko
- Martin P. Stratte
- Javaneh S. Tarter
- Thomas W. Taylor
- Patricia Tiller
- Linda Trees
- Andrew J. Turner
- Emily Burkhardt Vicente
- Gregory R. Wall
- Thomas R. Waskom
- Malcolm C. Weiss
- Michelle-Ann C. Williams
- Susan F. Wiltsie