BER 89-7 Confidentiality vs Safety Conflict State
From Engineer A's discovery of electrical and mechanical deficiencies through the Board's determination that reporting was ethically required
the facts presented in the case raised a conflict between two basic ethical obligations of an engineer: The obligation of the engineer to be faithful to the client and not to disclose confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety.
Engineer A in BER Case 89-7 facing conflict between client confidentiality and public safety reporting obligations
Board determination that Engineer A was obligated to report safety violations to appropriate public authorities
Client's disclosure of electrical and mechanical code violations under a confidentiality agreement with instruction not to remediate before sale
BER 97-13 Speculative Concern Scope Limitation Constraint Individual
BER Case 97-13 is cited as precedent establishing the distinction between speculative concerns (which warrant a more measured response) and confirmed violations (which require direct action), as applied in the present wetland fill case.
In BER Case 97-13, Engineer A's observation of a potentially defective bridge wall condition was based on general surmise and speculation from visual inspection alone, without domain expertise in structural engineering — constraining Engineer A from including the speculative finding in the final written report, while permitting verbal reporting to the client and documentation in engineering notes.
In deciding that (1) it was ethical for Engineer A to retain the information in his engineering notes but not include it in the final written report as requested, and (2) it was ethical for Engineer A not to report this information to any other public agency or authority as long as corrective action was taken by the public agency within a relatively short period of time.
During and after the bridge inspection scope of work
The Board said this because there was nothing under the facts to indicate anything more than Engineer A's general surmise and speculation about the cause of the structural failure of the wall.
Under the circumstances, the Board concluded that it would have been improper for Engineer A to include reference to the information in his final report, particularly since it would have been based upon mere speculation and not careful testing or evaluation by a competent individual or firm.
BER 97-13 Speculative Safety Concern Scope Limitation State
From Engineer A's visual observation of apparent wall defect through Board's determination that verbal reporting and field note retention were appropriate
the engineer's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall, based entirely upon a visual inspection without anything more
Speculation-Confirmed Violation Distinction State
Engineer A in BER Case 97-13 assessing whether visual observation of bridge wall defect constitutes confirmed finding or speculation
Board determination that Engineer A's speculative, out-of-scope observation warranted measured response rather than formal reporting
BER Case No. 97-13 indicates some basis for the engineer to be more reflective and careful before making statements or taking actions
there was nothing noted in the facts to indicate that Engineer A had expertise in the specific discipline involved—structural engineering
Engineer A's visual observation of apparent pre-existing defective condition in bridge wall outside scope of engagement
NSPE Board of Ethical Review Case No. 89-7
An example of the basic ethical dichotomy presented in this case was considered by the BER in Case No. 89-7
In deciding it was unethical for Engineer A not to report the safety violations to the appropriate public authorities, the Board noted that the facts presented in the case raised a conflict between two basic ethical obligations of an engineer
The Board can easily distinguish BER Case Nos. 89-7 and 97-13 from the present case
NSPE Board of Ethical Review for analogical reasoning in the present wetland violation case
Cited as precedent establishing the ethical framework for balancing client confidentiality against public safety obligations; involved an engineer who discovered building code violations during a structural inspection and the question of whether to report them to public authorities despite a confidentiality agreement
BER Case No. 89-7 before BER Case No. 97-13
NSPE Board of Ethical Review Case No. 97-13
In BER Case No. 97-13, another more recent case that raised similar issues, a public agency retained the services of VWX Architects and Engineers to perform a major scheduled overhaul of a bridge
In deciding that (1) it was ethical for Engineer A to retain the information in his engineering notes but not include it in the final written report as requested, and (2) it was ethical for Engineer A not to report this information to any other public agency or authority as long as corrective action was taken by the public agency within a relatively short period of time
NSPE Board of Ethical Review for analogical reasoning and distinction from the present wetland violation case
Cited as precedent involving a bridge inspection engineer who discovered a potentially defective wall condition outside his scope of work following a fatal accident; used to establish the principle that engineers must balance scope limitations, expertise boundaries, and public safety obligations, and that escalation to public authorities may be premature when corrective action is being taken through proper channels
BER Case No. 97-13 before present wetlands case
Bridge Defect Verbally Reported Only (BER 97-13)
{'entity_type': 'Private property owner', 'disclosure_type': 'Voluntary disclosure of known code violations to retained engineer'}
Property owner client who retained Engineer A to inspect a building prior to sale under a confidentiality agreement, disclosed known electrical and mechanical code violations to the engineer, and stated no remedial action would be taken prior to sale.
{'type': 'bound_by', 'target': 'Confidentiality agreement with engineer'}
{'type': 'retained', 'target': 'Engineer A BER 89-7 Building Sale Inspector'}
the client confided in Engineer A and informed him that the building contained deficiencies in the electrical and mechanical systems
the client made clear to Engineer A that the building was being sold 'as is'
the client was not planning to take any remedial action to repair or renovate any system within the building prior to its sale
CausalLink_Bridge Defect Verbally Reporte
CausalLink_Client Contacted About Violati
CausalLink_Safety Violations Not Reported
CausalLink_Violation Reported to Authorit
CausalLink_Wetland Delineation Services P
{'violation_type': 'Unpermitted wetland fill', 'fill_area': 'More than 0.5 acres', 'regulatory_status': 'Substantial violation of federal and state laws'}
Retained Engineer A for wetland delineation services and subsequently installed substantial fill material on more than half an acre of delineated wetlands without any permits, variances, or permissions, constituting a substantial violation of federal and state laws and regulations.
{'type': 'client_of', 'target': 'Engineer A Wetland Delineation Environmental Engineer'}
{'type': 'subject_to_reporting_by', 'target': 'Engineer A Wetland Delineation Environmental Engineer'}
the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands without any permits, variances, or permissions
The installation of the fill material is a substantial violation of the federal and state laws and regulations
Client Non-Compliance with Environmental Permitting Requirements
From installation of unpermitted fill through regulatory resolution
Federal and state regulatory authorities
Client's wetland site and regulatory standing with respect to federal and state environmental law
Regulatory enforcement, remediation, or retroactive permitting
The installation of the fill material is a substantial violation of the federal and state laws and regulations.
Client installs fill material in wetlands without required permits, variances, or permissions
Client Remediation Monitored (Action 3) → Violation Reported to Authorities (Action 4)
Client Unpermitted Wetland Fill Violation State
From the time the client installed fill in the wetland area without required permits through remediation or regulatory enforcement
Federal and state environmental regulatory authorities
the Board has not addressed the issue in the context of a client's apparent violation of environmental laws and regulations relating to wetland mitigation efforts
Unpermitted Wetland Fill Violation State
Client's unauthorized filling of jurisdictionally delineated wetland areas
Full remediation in compliance with applicable environmental laws, or regulatory enforcement action
the engineer should advise that the all remedial actions should be in full compliance with all applicable environmental laws and regulations
the facts in the present case indicate a violation of the federal and state laws and regulations
Client's installation of fill material in wetland areas without obtaining required federal and state environmental permits
Client Wetland Unpermitted Fill Violation
From the time the client installed the fill material (sometime after Engineer A completed services) through the present, persisting until regulatory enforcement or remediation
The client's wetland property following installation of unpermitted fill material
Regulatory enforcement action, fill removal, wetland restoration, or retroactive authorization if legally permissible
Client installs substantial fill material across more than half an acre of wetland without obtaining any permits, variances, or permissions
Engineer A should contact the client and inquire about the actions the client has taken and point out the action is a violation of the law and that steps need to be take to remedy the violation or obtain a variance from the proper authorities.
Beyond the Board's finding that Engineer A must contact the client and identify the violation, Engineer A's prior professional involvement in delineating the wetland boundaries creates a heightened duty of care that distinguishes this situation from that of an uninvolved engineer who incidentally observes the same fill. Because Engineer A's own work product — the wetland delineation report — defined the precise regulatory boundaries that the client has now violated, Engineer A possesses unique technical authority to assess the severity of the violation with confidence rather than speculation. This expertise-calibrated certainty removes the epistemic hedge that constrained the engineer in BER 97-13, where the Board declined to impose a reporting obligation because the observation was visual and potentially speculative. Here, Engineer A can confirm with professional certainty that the fill crosses jurisdictionally delineated wetland boundaries, and that certainty amplifies both the moral urgency and the professional obligation to act. If Engineer A's delineation report was ambiguous about regulatory boundaries or failed to clearly communicate the legal consequences of encroachment, Engineer A bears a partial contributory responsibility for the client's misunderstanding, which further reinforces the obligation to engage the client directly and promptly rather than treating the violation as entirely the client's unilateral failure.
The Board's graduated engagement framework — contact the client first, then escalate if necessary — is ethically sound as a general sequencing principle, but it carries an implicit temporal assumption that must be made explicit: the client-first step is only ethically permissible if it does not itself cause or permit irreversible harm during the interval between discovery and client response. Unpermitted wetland fill is not a static violation. Each additional day of fill placement, compaction, or vegetation suppression may cause incremental and potentially irreversible ecological harm — loss of hydric soil function, destruction of wetland hydrology, and elimination of habitat that cannot be restored to pre-disturbance condition even with full remediation. The Board's framework therefore implicitly requires that Engineer A's client contact be immediate rather than deferred, and that Engineer A set a defined and short deadline for client response before escalating to regulatory authorities. If the fill activity is ongoing at the time of observation — rather than already completed — the case for immediate parallel notification to authorities, rather than sequential engagement, becomes substantially stronger. Engineer A's obligation under the public welfare paramount principle does not permit open-ended patience with a client who is actively causing confirmed, ongoing environmental harm to a regulated public resource.
The Board's conclusion implicitly resolves the tension between client confidentiality and public welfare reporting in favor of disclosure, but does not articulate the precise doctrinal basis for why confidentiality does not bar Engineer A from contacting regulatory authorities if the client fails to remediate. This gap should be filled explicitly. Code provision II.1.c protects facts, data, and information obtained in a professional capacity from disclosure without client consent, and provision III.4 similarly protects confidential business information. However, the violation Engineer A observed was not learned through confidential professional engagement — it was observed incidentally, in plain view, from a public road, after the contract was complete. Information that is visually apparent from public vantage points does not acquire confidentiality protection merely because the observer happens to have a prior professional relationship with the property owner. Furthermore, even if some confidentiality interest were cognizable, Code provision I.1 establishes that public welfare is paramount, and the precedent of BER 89-7 confirms that confidentiality obligations yield when public safety or welfare is genuinely at stake. The environmental harm caused by unpermitted filling of more than half an acre of jurisdictional wetlands — including degradation of flood mitigation capacity, water quality, and ecological function — constitutes harm to the public welfare sufficient to trigger this override. Engineer A should therefore understand that escalation to regulatory authorities, if the client fails to act, is not a breach of professional confidentiality but rather a fulfillment of the paramount public welfare obligation that defines the ethical foundation of engineering practice.
Engineer A's prior professional involvement in delineating the wetland boundaries does create a heightened duty of care compared to a completely unrelated engineer who might observe the same violation. Because Engineer A produced the work product that defined the regulated boundaries, Engineer A possesses direct, authoritative knowledge of exactly which areas are jurisdictionally protected, the precise extent of the violation, and the applicable regulatory framework. This expertise eliminates any ambiguity that might otherwise justify hesitation or deference to the client's own interpretation of the boundaries. An unrelated engineer observing the same scene might reasonably question whether fill was placed inside or outside regulated areas; Engineer A cannot claim that uncertainty. This heightened epistemic certainty translates into a heightened ethical obligation: Engineer A's domain expertise as a wetland delineation specialist, combined with direct authorship of the delineation report, means the confirmation threshold for triggering reporting obligations is effectively already met upon observation. The prior professional relationship thus amplifies rather than complicates the duty to act.
The obligation to report to regulatory authorities does not become immediately operative upon observation of the violation, but the window for client-first engagement is narrow and time-sensitive given the ongoing ecological harm. The Board's graduated engagement framework — contact the client first, then escalate if the client fails to act — is ethically sound as a general sequencing principle, but it carries an implicit temporal constraint that the Board does not make explicit: the client-engagement step must be pursued promptly and with a defined deadline, not as an open-ended process that allows continued unpermitted fill to proceed indefinitely. Each additional day of unpermitted fill potentially causes irreversible harm to wetland hydrology, vegetation, and downstream water quality. Accordingly, Engineer A's obligation to contact the client should be discharged within days, not weeks, and the client's response — or failure to respond — should trigger an immediate escalation decision. If the client is unreachable, unresponsive, or explicitly refuses to remediate, Engineer A's obligation to report to regulatory authorities becomes immediate and unconditional. The graduated framework does not license delay; it merely sequences the steps.
If Engineer A's wetland delineation report was ambiguous or insufficiently clear about the precise regulatory boundaries, this potential contributory role does not diminish Engineer A's reporting obligation — it amplifies it. An ambiguous report that may have contributed to the client's misunderstanding of the regulated area creates an independent professional responsibility to clarify the record. However, this contributory dimension also modulates the ethical tone of the client engagement: Engineer A should approach the client not merely as an enforcer identifying a violation but as a professional who may share some responsibility for any confusion, offering to clarify the delineation findings while simultaneously making clear that the fill as placed constitutes a confirmed violation regardless of how the boundaries were communicated. Importantly, even if the report was perfectly clear and the client knowingly disregarded it, Engineer A bears no legal or ethical culpability for the client's independent decision to fill without permits. The contributory analysis affects the manner and tone of engagement, not the existence or urgency of the reporting obligation itself.
Engineer A's client confrontation should be documented in writing, and the failure to do so creates meaningful professional and legal exposure. At minimum, Engineer A should send a written communication — letter or email — to the client following any verbal conversation, confirming the substance of what was discussed, the nature of the violation identified, and the remediation steps Engineer A advised. This written record serves three functions: it creates an unambiguous contemporaneous account that the client cannot later deny receiving; it demonstrates that Engineer A fulfilled the professional obligation to notify the client before escalating to authorities; and it protects Engineer A from any claim that the subsequent regulatory report was made without prior client notice. The absence of written documentation would not extinguish Engineer A's ethical obligation to report, but it would weaken Engineer A's professional defense if the client later alleges that no warning was given or that Engineer A acted in bad faith. The written documentation obligation is not merely prudential — it reflects the broader professional standard of honesty and integrity under Code provision III.1.
The tension between the Faithful Agent Obligation and the Environmental Law Violation Reporting Obligation is real but resolvable through proper sequencing. Engineer A's duty as a faithful agent does not require silence in the face of confirmed legal violations; rather, it requires that Engineer A act in the client's genuine long-term interest, which includes alerting the client to serious legal exposure before that exposure is compounded by regulatory discovery. Contacting the client first is not a betrayal of the reporting obligation — it is the most professionally coherent way to honor both duties simultaneously. The client-first step gives the client the opportunity to self-correct, which is both in the client's interest and consistent with the public interest in achieving actual remediation. The reporting obligation to authorities becomes operative not when Engineer A first observes the violation, but when the client-engagement pathway has been exhausted or refused. This sequencing honors the faithful agent duty without allowing it to become a shield against the public welfare paramount principle.
The confidentiality provisions under Code sections II.1.c and III.4 do not create a genuine barrier to Engineer A's reporting obligation in this case, but the threshold analysis differs meaningfully from cases involving imminent threats to human life. In BER 89-7, the Board found that confidentiality did not bar disclosure of safety hazards threatening human life. The present case involves environmental regulatory violations rather than direct threats to human safety, which might appear to lower the urgency. However, the confidentiality provisions were never designed to protect clients from disclosure of their own ongoing illegal conduct to the authorities empowered to regulate that conduct. The information Engineer A possesses — the fact of unpermitted fill on a jurisdictionally delineated wetland — is not confidential business information in the protected sense; it is observable from a public road and constitutes a confirmed violation of federal and state law. Confidentiality protections attach to proprietary business information, not to the existence of regulatory violations that Engineer A is professionally obligated to address. The threshold for overriding confidentiality in environmental violation cases should therefore be understood as lower than for speculative safety hazards but higher than for imminent threats to human life — and the confirmed, substantial, ongoing nature of this violation clears that threshold.
The Scope-of-Work Limitation as an Incomplete Ethical Defense does create a risk of indeterminate post-contract monitoring obligations if left unqualified, and the profession should recognize a limiting principle. The ethical obligation triggered by Engineer A's incidental observation is not a general duty to monitor former clients' compliance with environmental law indefinitely after contract completion. Rather, it is a specific obligation triggered by actual, confirmed knowledge of a substantial violation — knowledge that Engineer A happens to possess because of both professional expertise and physical proximity. The obligation is bounded by the specificity and certainty of the observation: Engineer A must act on what Engineer A actually and confirmedly knows, not on what Engineer A might discover through active investigation. This means the post-contract incidental observation obligation is narrow in scope — it applies when an engineer with relevant expertise directly observes a confirmed violation — and does not impose any duty to seek out violations, revisit former project sites, or monitor client behavior. The temporal limit is the moment of confirmed observation; the geographic limit is the specific violation observed; and the epistemic limit is confirmed knowledge rather than speculation.
When the client takes partial remediation steps that may be legally insufficient, Engineer A faces the most difficult phase of the ethical obligation: the post-confrontation monitoring and escalation decision. The Public Welfare Paramount principle does not permit Engineer A to accept legally inadequate compliance simply to preserve the client relationship. However, Engineer A is not positioned to make a final legal determination about whether partial remediation satisfies regulatory requirements — that determination belongs to the relevant regulatory authorities. The appropriate resolution of this tension is for Engineer A to advise the client that partial remediation must be verified as legally sufficient by the relevant authorities, and that Engineer A cannot represent to those authorities that the violation has been remediated unless and until the client obtains formal regulatory confirmation. If the client refuses to seek that confirmation or if Engineer A has reasonable professional grounds to believe the partial remediation is legally inadequate, the obligation to escalate to regulatory authorities remains operative. Engineer A should not allow the appearance of good-faith client action to indefinitely forestall regulatory notification when the underlying violation has not been formally resolved.
From a deontological perspective, Engineer A does have a duty to report that is grounded in categorical obligation rather than outcome-contingent reasoning, but the duty is not unconditional in its immediate form. The NSPE Code's paramountcy of public welfare functions as a near-categorical rule: when an engineer possesses confirmed knowledge of a substantial violation of federal and state environmental law, the duty to act is not subject to a consequentialist override based on the engineer's assessment of whether reporting will produce a net benefit. However, deontological ethics does not require that the most severe available action be taken immediately — it requires that the morally obligated action be taken. The morally obligated action, as the Board concludes, is client contact followed by escalation if necessary. This sequencing is itself deontologically defensible: it respects the client's autonomy to self-correct while fulfilling the engineer's categorical duty to ensure the violation is addressed. The deontological duty is therefore unconditional in its existence but graduated in its expression.
From a consequentialist perspective, the aggregate environmental harm caused by unpermitted filling of more than half an acre of wetlands is sufficiently serious to justify escalation to regulatory authorities if the client fails to act, even at the cost of the client relationship. Wetlands provide irreplaceable ecological services — flood mitigation, water quality filtration, habitat provision — and the loss of more than half an acre represents a substantial and potentially irreversible harm to these public goods. The consequentialist calculus must also account for the systemic effects of engineer silence: if engineers with direct knowledge of environmental violations routinely defer to client relationships over public reporting obligations, the regulatory framework that protects wetlands is systematically undermined. The harm from that systemic erosion of regulatory integrity exceeds the harm to any individual client relationship. However, consequentialist reasoning also supports the client-first engagement step: if client contact produces voluntary remediation, the outcome — wetland restoration without adversarial regulatory proceedings — is better for all parties including the public than immediate escalation that may produce defensive client behavior and protracted legal proceedings without faster remediation.
From a virtue ethics perspective, the character of a professionally excellent environmental engineer does demand that Engineer A act on the incidental observation even though the contract is complete. Environmental stewardship is not merely a regulatory compliance posture for an environmental engineer — it is a constitutive professional virtue, meaning that an engineer who possesses technical competence in wetland delineation but is indifferent to the fate of the wetlands that competence is designed to protect lacks a core element of professional excellence. The virtue ethics analysis is particularly powerful here because it addresses the motivational question that deontological and consequentialist frameworks leave open: not just what Engineer A must do, but why Engineer A should want to do it. A virtuous environmental engineer does not need to be compelled by Code provisions to act on confirmed knowledge of wetland destruction — the commitment to environmental stewardship that defines professional excellence in this domain makes action the natural expression of professional character. The completion of the contract does not extinguish this virtue any more than a physician's duty of care is extinguished by the end of a clinical encounter.
The confidentiality duty under Code provisions II.1.c and III.4 does not create a genuine moral conflict with the duty to report environmental law violations when the harm is characterized as harm to a regulated ecosystem rather than direct harm to human life, but the resolution of the apparent conflict depends on how 'public danger' is defined. If public danger is construed narrowly to mean only imminent threats to human life and safety, then environmental violations might appear to fall outside the confidentiality override. However, this narrow construction is inconsistent with the Code's broader commitment to public welfare, which encompasses environmental integrity as a component of public health and safety. Wetland destruction causes downstream flooding, water quality degradation, and loss of ecological services that directly affect human communities. The harm is not merely to an abstract ecosystem — it is to the public that depends on that ecosystem. Accordingly, the confidentiality provisions should not be read to protect client information about ongoing illegal environmental destruction, and the duty to report takes categorical precedence over any confidentiality interest in the existence of the violation itself.
If Engineer A had never driven past the client's property and had therefore never observed the unpermitted fill, Engineer A would have had no ethical obligation to investigate whether the client complied with environmental law after the wetland delineation services were completed. The post-contract incidental observation obligation is triggered by actual confirmed knowledge, not by a general duty of vigilance or monitoring. The accidental nature of the discovery neither diminishes nor amplifies the resulting reporting obligation — it simply establishes the epistemic basis for the obligation. Once Engineer A possesses confirmed knowledge of the violation, the reporting obligation is identical whether the discovery was accidental or deliberate. The accidental discovery does not create a lesser duty on the theory that Engineer A was not 'looking for' violations; nor does it create a greater duty on the theory that fate has placed Engineer A in a uniquely informed position. The obligation is calibrated to the knowledge, not to the manner of its acquisition. This analysis confirms that the post-contract monitoring duty is narrow: it applies only when an engineer actually and confirmedly knows of a violation, not when an engineer might have known had they investigated.
If the client, upon being contacted by Engineer A, immediately acknowledged the violation and committed in writing to pursuing a retroactive permit or full remediation, Engineer A's obligation to escalate to regulatory authorities would be suspended pending client action but not extinguished. The written commitment creates a reasonable basis for Engineer A to allow the client a defined period to pursue the stated remediation pathway, but it does not eliminate the independent obligation to ensure the violation is ultimately resolved. Engineer A should establish a clear and short timeline — measured in weeks, not months — within which the client must demonstrate concrete progress toward regulatory compliance. If the client fails to meet that timeline, or if Engineer A has reason to believe the written commitment was made in bad faith to forestall regulatory scrutiny, the obligation to report to authorities becomes immediately operative. The Board's graduated engagement framework implicitly contemplates this monitoring role: client engagement is not a one-time event but an ongoing process with defined milestones, and Engineer A retains the obligation to escalate if those milestones are not met.
If Engineer A were a structural engineer rather than an environmental engineer who happened to observe the unpermitted wetland fill, the ethical obligation to act would exist in kind but would differ in intensity and confidence threshold. The structural engineer would possess general knowledge that unpermitted fill in wetlands is likely regulated but would lack the domain expertise to confirm with certainty that the specific fill observed constitutes a violation of the specific regulatory boundaries. This epistemic uncertainty would require the structural engineer to exercise greater caution before characterizing the observation as a confirmed violation, and might appropriately lead to a more tentative initial inquiry to the client rather than a direct assertion of violation. By contrast, Engineer A as the wetland delineation specialist who personally defined the boundaries possesses certainty that eliminates this epistemic buffer. The domain expertise therefore creates a qualitatively different — not merely quantitatively greater — duty: Engineer A's obligation is to act on confirmed knowledge, while a structural engineer's obligation would be to act on reasonable suspicion and seek confirmation. The Expertise-Calibrated Disclosure Threshold Principle thus operates to lower the action threshold for Engineer A relative to a non-specialist observer.
If the unpermitted fill had been placed by an unknown third party trespassing on the client's property rather than by the client, Engineer A's ethical obligations would shift in important ways. The duty to contact the client would remain — and would in fact become more urgent, because the client may be unaware of the trespass and the resulting regulatory liability that may attach to the property owner regardless of who placed the fill. However, the nature of that contact would shift from confrontation about the client's own violation to notification of a third-party violation that exposes the client to regulatory and legal risk. The duty to report to regulatory authorities would also remain operative, because the public welfare harm from unpermitted wetland fill is identical regardless of who placed it. In this scenario, the intermediate client-engagement step would serve a different function: it would give the client the opportunity to report the trespass and cooperate with authorities rather than to self-remediate a violation of their own making. The identity of the violator does not alter the moral calculus under the public welfare paramountcy principle — the wetland harm is the same — but it does alter the relational dynamics of the client engagement and potentially accelerates the timeline for regulatory notification, since the client in this scenario is a victim rather than a perpetrator.
The tension between the Faithful Agent Obligation Within Ethical Limits and the Environmental Law Violation Reporting Obligation was resolved not by eliminating one duty in favor of the other, but by sequencing them hierarchically in time. The Board's conclusion establishes a graduated engagement framework: Engineer A must first act as a faithful agent by contacting the client, informing the client of the violation, and directing the client toward remediation or a variance — thereby honoring the loyalty dimension of the professional relationship — before any escalation to regulatory authorities becomes obligatory. This sequencing reflects a principle that client loyalty is not extinguished by the discovery of a violation but is instead bounded by it: the faithful agent duty survives only insofar as it operates within the space of lawful and ethical conduct. Once the client has been given a reasonable opportunity to respond and either refuses or fails to act, the public welfare paramount principle displaces the faithful agent obligation entirely, and Engineer A's duty shifts from client-protective to public-protective. The case therefore teaches that these two principles are not genuinely irreconcilable but are temporally ordered, with client engagement serving as a necessary precondition to, rather than a permanent substitute for, regulatory escalation.
The Confidentiality Non-Applicability to Public Danger principle and the general confidentiality obligations under Code provisions II.1.c and III.4 were resolved in this case through a threshold distinction that turns on the nature of the harm rather than its severity alone. Unlike BER 89-7, where the confidentiality override was triggered by a direct threat to human life and safety, the present case involves a confirmed violation of federal and state environmental law — a harm to the public that is ecological and regulatory rather than immediately life-threatening. The Board's conclusion implicitly treats this distinction as insufficient to preserve confidentiality as a bar to disclosure, because the public welfare paramount principle under Code provision I.1 encompasses environmental integrity and not merely physical safety to persons. This synthesis teaches that confidentiality is not a binary protection that either fully applies or fully dissolves; rather, it is a graduated obligation whose yield point is calibrated to the nature and confirmation of the public harm. A confirmed, ongoing, and substantial environmental law violation — particularly one involving more than half an acre of unpermitted wetland fill — crosses the threshold at which confidentiality cannot shield the client from Engineer A's disclosure obligations, even absent an imminent threat to human life. The contrast with BER 97-13, where the speculative nature of the observed defect counseled restraint, further confirms that it is the combination of confirmation and substantiality of harm that triggers the confidentiality override, not the category of harm alone.
The Scope-of-Work Limitation as Incomplete Ethical Defense principle and the Incidental Observation Disclosure Obligation interact in this case to establish a durable post-contract ethical duty that is triggered by knowledge rather than by contractual relationship. The completion of Engineer A's wetland delineation services did not terminate Engineer A's status as a professional engineer subject to the NSPE Code of Ethics, nor did it extinguish Engineer A's capacity to recognize a substantial environmental law violation. The case teaches that the scope of an engineer's contractual work defines the boundaries of compensated professional service but does not define the boundaries of professional ethical obligation. When an engineer incidentally acquires knowledge — through any means, including a casual drive-by observation — of a confirmed, substantial violation of law that implicates public welfare, the Code's public welfare paramount principle activates an obligation to act that is independent of whether the engineer is currently retained. However, this principle does not create an unbounded post-contract monitoring duty: the obligation arises only upon actual knowledge of a confirmed violation, not upon a generalized duty to investigate former clients' compliance. The accidental nature of the discovery neither diminishes nor amplifies the obligation; it is the knowledge itself, once acquired, that generates the duty. This synthesis resolves the tension between scope limitation and incidental observation by anchoring the disclosure obligation to the epistemic state of the engineer rather than to the contractual state of the engagement, thereby setting a principled and bounded limit on post-contract ethical responsibility.
Confidentiality Non-Applicability to Public Danger Disclosure Invoked for Wetland Violation
Potential confidentiality obligations arising from the wetland delineation services engagement
Environmental Law Violation Reporting Obligation
Any confidentiality obligations Engineer A may have regarding the client's business affairs do not bar Engineer A from reporting the client's illegal wetland fill to appropriate regulatory authorities, because such disclosure serves the public welfare purpose of the ethics code and the environmental protection purpose of applicable law.
The Board's analysis of BER Case 89-7 — where confidentiality was a relevant factor counseling restraint — is distinguished in the present case because the violation is factually confirmed and constitutes a violation of federal and state law, not merely a safety concern arising from client-disclosed information.
Confidentiality Non-Applicability to Public Danger Disclosure
In contrast, the facts in the present case indicate a violation of the federal and state laws and regulations.
Confidentiality obligations do not apply to bar disclosure of confirmed environmental law violations — the public danger disclosure exception encompasses environmental law violations that threaten protected natural resources.
If appropriate steps are not taken by the client, the engineer would have an obligation to bring this matter to the attention of the appropriate authorities.
In BER Case No. 89-7, for example, the facts revealed that the client had confided in the engineer and may have relied upon the engineer to maintain the information in confidence.
Confidentiality Non-Applicability to Public Danger Disclosure Invoked in BER 89-7 Context
Confidentiality agreement governing the structural inspection report for the building sale
In BER Case 89-7, the Board held that Engineer A's confidentiality agreement with the building sale client did not bar Engineer A from reporting known electrical and mechanical code violations to appropriate public authorities, because the public safety obligation overrides the confidentiality obligation when occupants face risk of injury.
The Board's holding in BER 89-7 establishes the precedent that confidentiality agreements do not create an absolute bar to public safety disclosure — a precedent that is then applied and extended in the present wetland violation case.
Engineer A BER 89-7 Building Sale Inspector
In deciding it was unethical for Engineer A not to report the safety violations to the appropriate public authorities, the Board noted that the facts presented in the case raised a conflict between two basic ethical obligations of an engineer.
The Board held it was unethical for Engineer A not to report the safety violations to appropriate public authorities, notwithstanding the confidentiality agreement — establishing that public safety disclosure obligations supersede contractual confidentiality.
In deciding it was unethical for Engineer A not to report the safety violations to the appropriate public authorities, the Board noted that the facts presented in the case raised a conflict between two basic ethical obligations of an engineer: The obligation of the engineer to be faithful to the client and not to disclose confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety.
Under the terms of the agreement with the client, the structural report written by Engineer A was to remain confidential.
Confidentiality Non-Applicability to Public Danger Invoked In Wetland Fill Case
Federal and state environmental law violations
Any confidentiality expectation the client might assert regarding Engineer A's knowledge of the wetland fill violation does not bar Engineer A from reporting the violation to appropriate regulatory authorities, because the client's illegal destruction of protected wetland resources constitutes a public danger that falls within the public welfare exception to professional confidentiality.
The confidentiality non-applicability principle applies here because: (1) the client's conduct is illegal, not merely confidential business information; (2) the harm is to a protected public resource (wetlands), not merely a private matter; and (3) the engineer's reporting would be to regulatory authorities with jurisdiction over the violation, not to the public at large.
Confidentiality does not protect illegal conduct that harms public environmental resources; the public danger exception encompasses environmental law violations of this magnitude
Upon incidentally observing the unauthorized wetland fill post-contract, should Engineer A take affirmative professional action or treat the completed scope of work as extinguishing any further obligation?
A few months after completing a wetland delineation contract, Engineer A drives by the former client's property and observes that more than half an acre of wetland has been filled with material without any permits, variances, or permissions. Engineer A must decide whether to act on this incidental post-contract observation or treat the terminated contract as relieving any further professional responsibility. As an environmental engineer who personally delineated the wetland boundaries on this very site, Engineer A possesses both the technical competence to recognize the violation's significance and a heightened stewardship obligation that distinguishes this situation from a casual passerby.
Promptly contact the former client in writing, identify the observed unauthorized fill, point out that installation of fill material across more than half an acre of wetland without permits constitutes a substantial violation of federal and state environmental laws, and advise that remediation or a variance from proper authorities is required — documenting the date of observation, the nature of the violation, and the demand for remediation.
Conclude that because the wetland delineation contract has been completed and no ongoing monitoring obligation exists, Engineer A bears no professional duty to act on the incidentally observed violation, and take no further action.
Informally mention the observed fill to the client in a phone call or casual conversation without written notice, without formally characterizing it as a legal violation, and without creating any written record of the interaction — partially acknowledging the concern while falling short of the full disclosure and documentation obligation.
Engineer A — Environmental Engineer, Former Wetland Delineation Contractor
Should Engineer A document the client confrontation about the unauthorized wetland fill in writing, or is verbal notification sufficient to discharge the professional obligation?
Having decided to contact the client about the unauthorized wetland fill, Engineer A must determine the form and content of that communication. The obligation to document the confrontation in writing is distinct from the underlying duty to contact the client at all. Engineer A faces a choice between a fully documented written communication that creates a professional record — including the date of observation, the nature of the violation, the demand for remediation, and the client's response — versus a verbal-only contact that may satisfy the spirit of client engagement but leaves no evidentiary record and exposes Engineer A to professional and legal risk if the client later denies being informed.
Send the client a written communication — letter or email — that records the date of the incidental observation, describes the unauthorized fill observed, identifies the specific federal and state environmental laws violated, demands remediation or pursuit of required permits and variances, and requests a written response from the client, thereby creating a professional record that establishes Engineer A's action and the client's assumption of responsibility.
Contact the client by telephone or in person, verbally communicate the observed violation and the need for remediation, but create no written record of the interaction — mirroring the approach found insufficient in BER 97-13 and leaving Engineer A without documentation if the client later denies being informed or disputes the nature of the conversation.
When the client refuses or fails to adequately remediate the unauthorized wetland fill after being confronted, should Engineer A escalate the matter to regulatory authorities notwithstanding any client confidentiality claim?
After Engineer A contacts the client in writing about the unauthorized wetland fill, the client either refuses to remediate, fails to respond, or takes only partial remediation steps of uncertain legal sufficiency. Engineer A must now decide whether to escalate the matter to federal and state environmental regulatory authorities — including the Army Corps of Engineers, the EPA, and applicable state environmental agencies — or to treat the client contact as having discharged the professional obligation. The client may assert that Engineer A's knowledge of the fill is confidential information arising from the prior professional relationship, and Engineer A must evaluate whether that confidentiality claim bars external disclosure.
Escalate the matter by reporting the confirmed unauthorized wetland fill to the Army Corps of Engineers, the EPA, and applicable state environmental regulatory agencies, providing the documented record of the incidental observation, the written client confrontation, and the client's failure to remediate — recognizing that client confidentiality does not bar disclosure of a substantial violation of federal and state environmental law that implicates public welfare.
Treat the client's refusal as the end of Engineer A's professional obligation, accept any confidentiality claim the client asserts regarding Engineer A's knowledge of the fill, and take no further action — effectively allowing the ongoing wetland degradation to continue without regulatory intervention.
Continue to observe whether the client takes partial remediation steps, defer escalation to regulatory authorities on the assumption that partial action may eventually achieve compliance, and avoid reporting to agencies unless and until it becomes unambiguously clear that no remediation will occur — risking that ongoing degradation continues during the monitoring period and that the partial steps are legally insufficient.
Should Engineer A report the violation directly and immediately to regulatory authorities upon observation, or follow a sequenced approach of client engagement first with regulatory escalation held in reserve?
Engineer A must determine the proper sequencing of the client engagement and regulatory reporting obligations — specifically, whether the duty to report to authorities is immediately operative upon observing the violation, or whether it is contingent on first exhausting client engagement. This sequencing question is complicated by the fact that every day of delay allows ongoing wetland degradation to continue, and that the client's violation is confirmed rather than speculative. Engineer A must also consider whether the prior wetland delineation work — which may have been ambiguous about precise regulatory boundaries — affects the urgency or character of the reporting obligation.
Contact the client first in writing, allow a narrow and time-bounded window for the client to respond and commit to remediation, and escalate immediately to regulatory authorities if the client refuses, fails to respond within a defined period, or takes only legally insufficient partial steps — treating the client-first sequence as a professional courtesy that does not delay the ultimate reporting obligation beyond a short, defined window.
Notify both the client and the relevant regulatory authorities — Army Corps of Engineers, EPA, and state agencies — at the same time upon confirming the violation, on the grounds that the ongoing wetland degradation is sufficiently serious and the violation sufficiently confirmed that no delay in regulatory notification is ethically permissible, even as a professional courtesy to the former client.
Postpone both client contact and regulatory reporting until Engineer A can review the original wetland delineation report to determine whether any ambiguity in the reported boundaries might have contributed to the client's actions, treating the potential contributory role of the prior report as a reason to defer action — an approach that allows ongoing degradation to continue and conflates the question of report clarity with the independent obligation to report a confirmed violation.
{'license': 'Professional Engineer (structural)', 'specialty': 'Structural engineering; not electrical or mechanical', 'knowledge_basis': "Client-disclosed violations outside engineer's specialty"}
Structural engineer retained to inspect a building prior to sale under a confidentiality agreement who received client disclosure of electrical and mechanical code violations, noted the disclosure briefly in the report, but did not report the violations to public authorities — conduct the BER found to be unethical.
{'type': 'bound_by', 'target': 'Confidentiality agreement with client'}
{'type': 'retained_by', 'target': 'Building Sale Client (BER 89-7)'}
{'type': 'should_have_reported_to', 'target': 'Appropriate public authorities'}
Confidentiality-Bound Building Sale Engineer
Engineer A was retained to investigate the structural integrity of a 60-year-old occupied apartment building which his client was planning to sell
Engineer A did not report the safety violations to any third party
Engineer A made a brief mention of his conversation with the client concerning the deficiencies
Under the terms of the agreement with the client, the structural report written by Engineer A was to remain confidential
the Board noted that the facts presented in the case raised a conflict between two basic ethical obligations of an engineer
Engineer A BER 89-7 Building Sale Inspector Confidentiality Non-Override Safety
Confidentiality Pre-emption by Public Safety Recognition Capability
Engineer A in BER 89-7 was found to have failed to exercise the capability to recognize that the confidentiality agreement with the client was pre-empted by the professional obligation to report known electrical and mechanical safety violations to appropriate public authorities — the BER found it unethical not to report despite the confidentiality agreement.
BER 89-7 precedent case — Engineer A failed to report known safety violations to public authorities despite confidentiality agreement, found unethical by BER
The BER's finding that it was unethical for Engineer A not to report the safety violations to appropriate public authorities despite the confidentiality agreement, establishing that confidentiality is pre-empted by public safety obligations
the obligation of the engineer to hold paramount the public health and safety.
Engineer A BER 97-13 Sub-Consultant Bridge Inspector
{'license': 'Professional Engineer (civil)', 'specialty': 'Pavement inspection (contracted scope); not a structural engineer', 'knowledge_basis': 'Visual inspection only; general surmise and speculation'}
Sub-consultant retained solely to identify pavement damage on a bridge who incidentally observed a pre-existing defective wall condition potentially contributing to a fatal accident, verbally reported it to the prime consultant, documented it in field notes, but did not include it in the final report per client request.
{'type': 'indirectly_serves', 'target': 'Public Agency (BER 97-13)'}
{'type': 'reported_to', 'target': 'VWX Architects and Engineers'}
{'type': 'sub_consultant_to', 'target': 'VWX Architects and Engineers'}
Scope-Limited Sub-Consultant Engineer with Incidental Safety Observation
Engineer A, a civil engineer, as its sub-consultant to perform bridge inspection services on the bridge
Engineer A noticed an apparent pre-existing defective condition in the wall
Engineer A stated that he would retain the information from his engineering notes but not include it in the final report
Engineer A verbally reported this information to his client
Engineer A's scope of work was solely to identify any pavement damage on the bridge
Engineer A BER 97-13 Sub-Consultant Bridge Inspector Confirmed vs Speculative Violation Calibration
Confirmed vs Speculative Violation Reporting Calibration Capability
Engineer A in BER 97-13 demonstrated the capability to recognize that his observation of the wall defect was based on general surmise and speculation from visual inspection alone — without domain expertise in structural engineering — warranting a more measured approach: verbal reporting to the client rather than inclusion in the formal report or direct reporting to public authorities.
BER 97-13 precedent case — Engineer A observed a potential wall defect outside his scope and expertise, warranting measured rather than direct reporting
Engineer A's decision to retain the wall defect observation in field notes and report verbally to the client, but not include it in the formal report or report directly to public authorities, based on the speculative nature of the observation and lack of structural engineering expertise
Engineer A's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall, based entirely upon a visual inspection without anything more.
BER Case No. 97-13 indicates some basis for the engineer to be more reflective and careful before making statements or taking actions that could jeopardize the interests of others.
there was nothing noted in the facts to indicate that Engineer A had expertise in the specific discipline involved—structural engineering.
Engineer A Client Confidentiality Reliance Modulation Wetland Fill
The client in BER Case 89-7 affirmatively confided information under a confidentiality agreement, creating a stronger basis for measured deliberation. In the present case, Engineer A independently observed the violation without any client disclosure, which weakens any confidentiality-based basis for deferral.
Client Confidentiality Reliance Factor Escalation Modulation Constraint
Unlike BER Case 89-7 where the client affirmatively confided information to the engineer under a confidentiality agreement, Engineer A independently observed the unpermitted wetland fill while driving by the property — the absence of affirmative client confidentiality reliance constrains Engineer A from invoking implied confidentiality expectations as a basis for deferring or moderating the escalation response.
NSPE Code of Ethics; BER Case No. 89-7; Present BER Case Analysis
From the moment Engineer A observes the unpermitted wetland fill through the escalation process
In contrast, the facts in the present case indicate a violation of the federal and state laws and regulations. Engineer A's actions appear to be obvious—contact the client and inquire directly about the actions the client has taken.
Taken together, it would be reasonable for an engineer under those circumstances to act in a deliberate and cautious manner before taking any action.
Engineer A Client Remediation Monitoring Follow-Through Wetland Fill
Engineer A has confronted the client about the unauthorized wetland fill. If the client agrees to take remedial steps, Engineer A cannot simply accept that assurance and move on — the professional obligation requires active monitoring until compliance is confirmed.
Client Remediation Monitoring Follow-Through Constraint
After confronting the client about the unpermitted wetland fill and receiving assurance that remedial steps will be taken, Engineer A is constrained to monitor the situation until sufficiently satisfied that the situation has been remedied in full compliance with all applicable environmental laws and regulations, and may not treat the client's verbal assurance as a complete discharge of the professional obligation.
NSPE Code of Ethics; Present BER Case Analysis
If the client indicates that those steps will be taken, the engineer should monitor the situation until the engineer is sufficiently satisfied that the situation has been remedied.
From the client's assurance of remediation until actual compliance with all applicable environmental laws and regulations is confirmed
At the same time, the Board was of the opinion that Engineer A had an obligation to follow through to see that correct follow-up action was taken by the public agency.
In this connection, the engineer should advise that the all remedial actions should be in full compliance with all applicable environmental laws and regulations, which may include the review of a licensed engineer.
Engineer A Confidential Information Held State BER 89-7
From client's confidential disclosure of deficiencies through Engineer A's decision about reporting
Engineer A holding client-disclosed information about electrical and mechanical deficiencies under confidentiality agreement in BER 89-7
Board determination that safety obligations override confidentiality in this context
Client's confidential disclosure of electrical and mechanical code violations to Engineer A under terms of confidentiality agreement
Engineer A Confidentiality Non-Bar Environmental Regulatory Disclosure Constraint Wetland Fill
Engineer A holds knowledge of the client's unauthorized wetland fill. If the client refuses remediation, any confidentiality interest the client might assert cannot bar Engineer A from disclosing the violation to regulatory authorities, as the paramount public welfare obligation supersedes confidentiality in the context of confirmed environmental law violations.
Confidentiality Non-Bar to Safety-Critical Regulatory Disclosure Constraint
Engineer A is constrained from treating any confidentiality expectation the client might assert as an absolute bar to disclosing the observed unauthorized wetland fill to regulatory authorities — if the client refuses to remediate the violation after being contacted, Engineer A's paramount obligation to protect public welfare supersedes any confidentiality interest the client might claim, and Engineer A must escalate to the U.S. Army Corps of Engineers, state environmental regulatory agencies, and other appropriate authorities.
NSPE Code of Ethics Sections I.1, II.1.a, III.4; BER Case No. 89-7; Clean Water Act Section 404; State wetland protection laws
the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands without any permits, variances, or permissions.
Operative if and when the client refuses to remediate the unauthorized wetland fill following Engineer A's contact and direction
Engineer A Confidentiality Non-Bar Environmental Regulatory Disclosure Wetland Fill
Engineer A may face a client assertion of confidentiality regarding the observed wetland fill. The BER's analysis establishes that such confidentiality claims do not bar regulatory disclosure when confirmed environmental law violations are involved and the client refuses to remediate.
Confidentiality Non-Bar to Environmental Regulatory Violation Disclosure Constraint
Any confidentiality expectation the client might assert regarding Engineer A's knowledge of the unpermitted wetland fill does not bar Engineer A from disclosing the violation to regulatory authorities if the client refuses to remediate — the paramount obligation to protect public welfare and environmental compliance supersedes any confidentiality interest in the confirmed environmental law violation.
NSPE Code of Ethics Section II.1; BER Case No. 89-7; Present BER Case Analysis
Operative from the point at which the client refuses to take appropriate remedial steps
Engineers play an essential role in society by taking steps and actions to see that products, systems, facilities, structures, and the land surrounding them are reasonably safe.
Engineer A Confidentiality Non-Override Environmental Violation
Confidentiality Non-Applicability to Public Danger Disclosure Assessment Capability
Engineer A possesses the capability to assess whether any confidentiality expectation the client might assert regarding Engineer A's knowledge of the unauthorized fill bars disclosure to regulatory authorities, and to correctly determine that confidentiality does not apply when the disclosure involves a substantial violation of federal and state environmental laws constituting apparent danger to the public interest.
Applied when evaluating whether prior client relationship creates confidentiality bar to regulatory reporting of observed environmental violation
Recognition that client confidentiality expectations cannot override the obligation to report substantial environmental law violations to regulatory authorities
Engineer A performs wetland delineation services on the client's wetland site
Engineer A Confidentiality Non-Override Environmental Violation Wetland Fill
The client-engineer relationship from the prior wetland delineation engagement does not create a confidentiality shield that would prevent Engineer A from reporting the observed unauthorized wetland fill to regulatory authorities, because the violation constitutes a public danger and environmental law violation rather than proprietary technical or commercial information.
Engineer A is obligated to recognize that any confidentiality expectation the client might assert regarding Engineer A's knowledge of the unauthorized wetland fill does not bar Engineer A from disclosing the violation to regulatory authorities, because professional confidentiality obligations do not extend to bar disclosure of engineering findings that bear on public environmental welfare and constitute substantial violations of federal and state law.
Engineer A performs wetland delineation services on the client's wetland site.
Applicable from the moment of incidental observation through any subsequent regulatory escalation
Engineer A Confirmed Violation vs Speculation Proportionality Wetland Fill
Engineer A, an environmental engineer who performed wetland delineation on the client's property, observes unpermitted fill material installed in the delineated wetland while driving by the property after contract completion. Unlike BER Cases 89-7 and 97-13 where the concerns were speculative or outside the engineer's expertise, this violation is confirmed and within Engineer A's domain expertise.
Confirmed Violation vs. Speculation Proportionality Constraint
Engineer A's discovery of the client's unpermitted wetland fill constitutes a confirmed, observable violation of federal and state environmental law — not mere speculation or surmise — which constrains Engineer A from adopting the more measured, deferential approach appropriate for speculative concerns (as in BER Cases 89-7 and 97-13) and requires instead direct client contact, remediation direction, and regulatory escalation if the client fails to act.
NSPE Code of Ethics; BER Case No. 89-7; BER Case No. 97-13; Present BER Case Analysis
From the moment Engineer A observes the unpermitted wetland fill while driving by the property after contract completion
Engineer A's actions appear to be obvious—contact the client and inquire directly about the actions the client has taken and point out the violations of the law and that immediate steps need to be taken to remedy the violation.
Similarly, in BER Case No. 97-13, the engineer's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall.
Those two cases involved a different set of factors that created a reasonable basis for an engineer to take a more measured approach to the situation.
Engineer A Domain Expertise Escalation Calibration Wetland Fill
Unlike the engineers in BER Cases 89-7 and 97-13 who lacked expertise in the relevant technical domains (mechanical/electrical and structural engineering respectively), Engineer A is an environmental engineer who specifically performed wetland delineation on this property — giving Engineer A direct domain expertise that constrains the ability to defer or qualify the response.
Domain Expertise Presence Escalation Calibration Constraint
Engineer A, as an environmental engineer who performed wetland delineation on the very site where the unauthorized fill was installed, possesses domain expertise in wetland identification and environmental compliance — constraining Engineer A from adopting the more deferential approach available to engineers who lack domain expertise in the relevant technical area (as in BER Cases 89-7 and 97-13), and requiring instead a more direct and immediate response to the confirmed violation.
In addition, the engineer in BER Case No. 89-7 did not have any particular expertise in the technical areas (mechanical, electrical) involved in the matter at issue.
From the moment Engineer A observes the unpermitted wetland fill
Again, BER Case No. 97-13 indicates some basis for the engineer to be more reflective and careful before making statements or taking actions that could jeopardize the interests of others.
In addition, as in BER Case No. 89-7, there was nothing noted in the facts to indicate that Engineer A had expertise in the specific discipline involved—structural engineering.
In contrast, the facts in the present case indicate a violation of the federal and state laws and regulations. Engineer A's actions appear to be obvious.
Engineer A Environmental Engineer Heightened Stewardship Constraint Wetland Fill
Engineer A is specifically an environmental engineer who performed wetland delineation on this exact site. This specialization and prior site engagement creates a heightened stewardship obligation beyond that of a generalist engineer who might incidentally observe an environmental violation on an unfamiliar site.
Environmental Engineer Heightened Wetland Stewardship Constraint
Engineer A, as an environmental engineer who personally performed wetland delineation services on the very site where the unauthorized fill was installed, is constrained by a heightened professional stewardship obligation — arising from specialized domain expertise, prior site-specific knowledge of the delineated wetland boundaries, and professional identity as an environmental engineer — from treating the observed violation as outside professional concern, and must apply that specialized knowledge in responding to the violation.
NSPE Code of Ethics; Sustainable Development Ethics Provision; Professional norms for environmental engineering practice
Engineer A is an environmental engineer.
From the moment of incidental observation of the unpermitted fill, amplified by Engineer A's prior site-specific professional engagement
he drives by his client's property and notices that the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands
Engineer A Environmental Hazard Observation
From the time fill was installed through remediation or regulatory resolution
The client's wetland site following unpermitted fill installation
Removal of fill and wetland restoration, or regulatory authorization
Installation of substantial fill material in jurisdictionally delineated wetlands without permits
Engineer A Environmental Law Violation Client Contact Obligation Wetland Fill
Engineer A performed wetland delineation services for the client and subsequently observed, while driving by the property post-contract, that the client had installed substantial fill material on more than half an acre of delineated wetlands without any permits, variances, or permissions, in substantial violation of federal and state law.
Environmental Law Violation Client Inquiry and Remediation Direction Obligation
Engineer A is obligated to contact the client upon observing the unauthorized wetland fill, inquire about the actions taken, point out that the installation of fill material without permits constitutes a substantial violation of federal and state environmental laws, and advise the client that steps must be taken to remedy the violation or obtain a variance from proper authorities, with all remedial actions in full compliance with applicable environmental laws.
A few months after Engineer A completes the services, he drives by his client's property and notices that the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands without any permits, variances, or permissions.
Upon incidental observation of the unauthorized wetland fill, which occurred a few months after completion of the wetland delineation contract
Engineer A Environmental Law Violation Client Inquiry Remediation Direction
Environmental Law Violation Client Inquiry and Remediation Direction Capability
Engineer A possesses the capability to contact the client upon observing the unauthorized wetland fill, inquire about the actions taken, point out the legal violation, and direct the client to take remedial steps in full compliance with applicable environmental laws and regulations.
Triggered by incidental post-contract observation of unauthorized wetland fill on former client's property
Obligation to contact client, inquire about unauthorized fill, identify legal violation, and direct remediation steps upon incidental observation of the fill
he drives by his client's property and notices that the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands without any permits, variances, or permissions
Engineer A Environmental Stewardship Heightened Duty
Environmental Engineer Heightened Domain Stewardship Capability
Engineer A, as an environmental engineer who performed the original wetland delineation on the very site where the unauthorized fill was installed, possesses the capability to recognize and fulfill a heightened professional stewardship obligation arising from the combination of environmental domain expertise and prior site-specific engagement.
Applied when assessing the scope of professional obligations arising from incidental post-contract observation of violation on site where engineer performed original environmental assessment
Recognition that prior wetland delineation work on the same site creates an amplified professional duty to respond to the observed unauthorized fill violation
Engineer A Environmental Stewardship Heightened Duty Wetland Fill
Engineer A's identity as an environmental engineer and prior engagement in wetland delineation services on the specific site creates a heightened environmental stewardship duty that amplifies the general professional obligation to report the observed unauthorized wetland fill.
Engineer A, as an environmental engineer who performed wetland delineation services on the very site where the unauthorized fill was installed, bears a heightened environmental stewardship obligation — beyond that of a general engineer — to act on the observed violation, recognizing that Engineer A's specialized environmental credentials and prior site engagement create a particular professional responsibility to protect the wetland resource from ongoing illegal degradation.
Applicable from the moment of incidental observation, amplified by the prior professional engagement on the same site
Engineer A Environmental Stewardship Heightened Duty Wetland Fill Individual
Engineer A's status as an environmental engineer with direct prior knowledge of the site's wetland boundaries creates a heightened obligation that distinguishes this case from BER Cases 89-7 and 97-13 where the engineers lacked domain expertise in the relevant technical areas.
As an environmental engineer who performed wetland delineation services on the very site where the unauthorized fill was subsequently installed, Engineer A bears a heightened professional obligation to respond to the observed violation — arising from specialized domain expertise, prior site knowledge, and professional identity as an environmental steward — prohibiting Engineer A from treating the violation as outside professional concern on the grounds that the delineation contract has been completed.
Engineer A Faithful Agent Boundary State Present Case
From the time the wetland fill was installed without permits through adequate remediation
Public welfare at risk from client's confirmed wetland fill violations in the present case
Full remediation in compliance with applicable environmental laws
immediate steps need to be taken to remedy the violation
Client's unauthorized filling of wetland areas in violation of federal and state environmental laws
Engineer A Federal State Wetland Regulatory Compliance Constraint Unpermitted Fill
The client installed fill material on more than half an acre of delineated wetlands without any permits, variances, or permissions. This is a substantial violation of federal and state environmental law that Engineer A observed incidentally after completing wetland delineation services on the same site.
Client (with Engineer A as knowledge-holding professional)
Environmental Regulatory Compliance Constraint
The client's installation of substantial fill material across more than half an acre of jurisdictionally delineated wetlands without permits, variances, or permissions constitutes a substantial violation of federal and state environmental law — constraining Engineer A, as the professional with knowledge of this violation, from facilitating, ignoring, or remaining silent about the ongoing non-compliant state, and establishing the legal baseline that grounds Engineer A's professional reporting obligations.
Clean Water Act Section 404; U.S. Army Corps of Engineers regulations; State wetland protection laws and regulations; NSPE Code of Ethics
From the date of unpermitted fill installation, continuing until the client obtains required permits or removes the fill and restores the wetland
Engineer A Graduated Client Engagement Before Regulatory Escalation Wetland Fill
The BER's analysis establishes a clear graduated sequence: (1) contact client and point out violations, (2) monitor remediation if client agrees to act, (3) escalate to regulatory authorities if client fails to act — mirroring the graduated engagement approach established in other BER cases.
Graduated Client Engagement Before Withdrawal Constraint
Engineer A must pursue a graduated sequence of engagement steps before escalating to regulatory authorities — first contacting the client directly to inquire about the actions taken and point out the violations, then monitoring remediation if the client agrees to act, and only escalating to regulatory authorities if the client fails to take appropriate remedial steps — prohibiting both premature regulatory escalation that bypasses direct client engagement and indefinite deferral of escalation when the client refuses to remediate.
From the moment Engineer A observes the unpermitted wetland fill through resolution of the violation
Engineer A Incidental Observation Disclosure Obligation Wetland Fill
Incidental Observation Out-of-Scope Safety Deficiency Identification Capability
Engineer A possesses the capability to recognize, upon incidental post-contract observation while driving past the former client's property, that the unauthorized wetland fill constitutes a condition triggering professional disclosure obligations — including the obligation to disclose in writing to the client the observed unauthorized fill condition — despite the absence of any ongoing contractual duty to monitor or inspect the site.
Applied upon incidental post-contract observation of unauthorized wetland fill while driving past former client's property
Recognition that incidental observation of unauthorized fill triggers disclosure obligations independent of contracted scope or ongoing contractual relationship
A few months after Engineer A completes the services, he drives by his client's property and notices that the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands without any permits, variances, or permissions
Engineer A Incidental Observation Disclosure Obligation Wetland Fill Post-Contract
Engineer A's post-contract incidental drive-by observation of the client's unauthorized wetland fill activates the incidental observation disclosure obligation because Engineer A holds environmental engineering credentials and performed the prior wetland delineation, giving Engineer A both the competence to recognize the violation and the professional responsibility to act on it.
Incidental Observation Safety Disclosure Obligation
Engineer A is obligated to disclose in writing to the client the observed unauthorized wetland fill condition — identified incidentally while driving by the former client's property — because Engineer A, as an environmental engineer with wetland delineation expertise, is technically competent to recognize the violation and its significance, and the observation triggers a disclosure duty notwithstanding the absence of an active contract.
Upon incidental observation of the unauthorized wetland fill during the post-contract drive-by
Engineer A Incidental Post-Contract Environmental Violation Recognition
Post-Contract Incidental Observation Environmental Violation Recognition Capability
Engineer A possesses the capability to recognize, upon incidentally driving past the former client's property after contract completion, that the observed fill material constitutes an unauthorized environmental law violation triggering professional obligations despite the absence of any ongoing contractual relationship.
Post-contract incidental observation while driving past former client's property
Recognition that driving past the property and observing the fill — months after contract completion — triggers professional obligations rather than permitting passive disregard
Engineer A Incidental Safety Observation of Client Violation
From the moment of observation through fulfillment of reporting obligations
Engineer A's incidental observation of the client's regulatory violation while driving by the property after contract completion
Engineer A reports the violation to appropriate authorities
Engineer A drives by the client's property and observes the unpermitted fill — outside the scope of any active engagement
Engineer A Open Client-Public Interest Conflict State
From Engineer A's post-service discovery of the wetland fill violations through resolution by client remediation or authority reporting
Engineering practice sometimes places the engineer in the position where the interests of a client and the interests of the public are in open and serious conflict.
Client-Interest vs. Public-Interest Open Conflict State
Engineer A's professional situation following discovery of client's wetland fill violations
Client's adequate remediation of violations, or Engineer A's report to appropriate authorities if client fails to act
Engineer A's incidental discovery that the client has filled wetland areas in violation of federal and state environmental laws and regulations
Engineer A Post-Client-Refusal Escalation Wetland Fill
Post-Client-Override Regulatory Escalation Assessment Capability
Engineer A possesses the capability to assess whether, if the client refuses to remediate the unauthorized wetland fill or obtain required permits after being confronted, the gravity of the environmental violation requires escalation to appropriate regulatory authorities — including the Army Corps of Engineers, EPA, and state environmental agencies — and to act on that assessment by making formal regulatory reports.
Applied to post-confrontation escalation decision when client refuses to take remedial action regarding unauthorized wetland fill
Obligation to escalate to regulatory authorities if client refuses to remediate after confrontation, consistent with the paramount duty to protect public welfare
Engineer A Post-Client-Refusal Escalation Wetland Fill Regulatory Authorities
If the client declines to act on Engineer A's demand for remediation of the unauthorized wetland fill, Engineer A's obligation escalates from client-directed remediation demand to regulatory authority reporting, consistent with the post-client-refusal escalation assessment principle.
Incidental Post-Contract Environmental Violation Escalation Obligation
Engineer A is obligated, if the client refuses to remediate the unauthorized wetland fill or obtain required permits and variances after being confronted, to escalate the matter to appropriate federal and state environmental regulatory authorities — including the Army Corps of Engineers, EPA, and applicable state environmental agencies — so that enforcement action can be taken to address the substantial violation of federal and state environmental laws.
Triggered upon client refusal or failure to act on Engineer A's remediation demand within a reasonable period
Engineer A Post-Client-Refusal Regulatory Escalation Constraint Wetland Fill
Engineer A's graduated response obligation requires first contacting the client, then escalating to regulatory authorities if the client refuses remediation. Client refusal does not discharge Engineer A's professional obligation — it triggers the escalation phase.
Environmental Standards Violation Regulatory Disclosure Constraint
If the client refuses to remediate the unauthorized wetland fill or obtain required permits after being contacted by Engineer A, Engineer A is constrained by the paramount public welfare obligation to escalate the violation to the U.S. Army Corps of Engineers, state environmental regulatory agencies, and other appropriate authorities — prohibiting Engineer A from treating client refusal as a final resolution that discharges the professional reporting obligation.
NSPE Code of Ethics Sections I.1, II.1.a; Clean Water Act Section 404; State wetland protection laws; BER Case No. 89-7; Engineer Public Safety Escalation Standard
Triggered upon client refusal to remediate or obtain required permits following Engineer A's initial contact
Engineer A Post-Client-Refusal Regulatory Escalation Wetland Fill
Engineer A has confronted the client about the unauthorized wetland fill. If the client refuses to remediate or fails to act within a reasonable period, Engineer A's professional obligation requires escalation to appropriate regulatory authorities including potentially the Army Corps of Engineers and state environmental agencies.
Post-Client-Refusal Regional Code Advocacy Permissibility Constraint
If the client fails to take appropriate remedial steps following Engineer A's direct confrontation about the unpermitted wetland fill, Engineer A is constrained to bring the matter to the attention of the appropriate regulatory authorities — the client's refusal to remediate does not discharge Engineer A's professional obligation but rather triggers the escalation obligation.
NSPE Code of Ethics Section II.1; Present BER Case Analysis
Triggered when the client fails to take appropriate remedial steps within a reasonable period following Engineer A's direct confrontation
Engineer A Post-Contract Incidental Observation Environmental Reporting Constraint Wetland Fill
Engineer A completed wetland delineation services on the client's site. Months later, while driving by the property, Engineer A observes that the client has installed substantial fill material across more than half an acre of delineated wetlands without any permits, variances, or permissions, in substantial violation of federal and state law.
Environmental Law Incidental Observation Client Inquiry Constraint
Engineer A is constrained from remaining silent about the observed unauthorized wetland fill on the grounds that the wetland delineation contract has been completed — the post-contract incidental observation of a substantial federal and state environmental law violation triggers an independent professional obligation to contact the client, inquire about the fill activity, point out the legal violation, and direct the client to take remedial steps in full compliance with applicable environmental laws.
NSPE Code of Ethics; BER Case precedent on incidental environmental observation; Clean Water Act Section 404; State wetland protection laws
From the moment Engineer A observes the unpermitted fill while driving by the property, continuing until the client remediates the violation or Engineer A escalates to regulatory authorities
Engineer A Post-Contract Scope Non-Excuse Environmental Reporting
Scope-of-Work Non-Excuse Material Omission Recognition Capability
Engineer A possesses the capability to recognize that the completion of the wetland delineation contract and the absence of any ongoing monitoring obligation does not excuse him from professional obligations triggered by incidental observation of a substantial environmental law violation on the former client's property.
Applied to post-contract incidental observation situation where no ongoing contractual obligation exists
Recognition that post-contract status and scope-of-work limitations do not extinguish the obligation to report and respond to observed environmental violations
Engineer A Post-Contract Scope Non-Excuse Environmental Reporting Wetland Fill
Engineer A's wetland delineation contract was completed months before the incidental observation. The absence of an active contract or ongoing monitoring duty does not extinguish the professional obligation to act on the observed violation.
Post-Contract Environmental Observation Scope-of-Work Non-Excuse Obligation
Engineer A is obligated to recognize that the completion of the wetland delineation contract and the absence of any ongoing monitoring obligation do not excuse Engineer A from the duty to report the observed unauthorized wetland fill and demand remediation, and to refrain from treating the terminated contract as a justification for inaction in the face of a substantial federal and state environmental law violation.
Applicable from the moment of incidental observation, notwithstanding the prior contract termination
Engineer A Post-Service Environmental Violation Discovery State
From Engineer A's incidental post-service observation of the wetland fill violations through resolution
Post-Service Client Regulatory Violation Discovery State
Engineer A's discovery of client's wetland fill violations after completion of engineering services
Client remediation or Engineer A's report to appropriate authorities
Engineer A's incidental observation that the client has filled wetland areas in violation of applicable environmental laws after the engineering engagement concluded
Engineer A Post-Service Incidental Violation Discovery
From the moment Engineer A observes the unpermitted fill while driving by the property, persisting until Engineer A fulfills reporting obligations or the violation is remediated
Federal regulatory authorities (e.g., Army Corps of Engineers, EPA)
Engineer A's relationship to the client's site following completion of wetland delineation services
Engineer A's report to appropriate federal and state regulatory authorities, or regulatory enforcement action resolving the violation
Engineer A drives by the client's property and observes substantial unpermitted fill material installed across more than half an acre of the delineated wetland
Engineer A Precedent-Based Environmental Reporting Obligation Recognition
Precedent-Informed Environmental Reporting Obligation Recognition Capability
Engineer A possesses the capability to recognize, drawing on established BER precedent, that professional obligations to report environmental law violations to regulatory authorities persist after contract completion and despite any client expectation of confidentiality — including understanding that the post-contract status does not extinguish the obligation to report when public welfare is implicated.
Applied when assessing whether post-contract status bars professional reporting obligations regarding observed environmental violation
Recognition that post-contract status and scope-of-work completion do not extinguish reporting obligations when substantial environmental violations are observed
Engineer A Public Safety at Risk from Wetland Destruction
From installation of fill through remediation
Public welfare and environmental integrity threatened by unpermitted wetland fill
Regulatory enforcement and wetland restoration
Substantial unpermitted fill across more than half an acre of wetland, constituting violation of federal and state environmental law
Engineer A Public Welfare Paramount Constraint Wetland Fill Environmental Violation
The client's unauthorized wetland fill constitutes a substantial violation of federal and state environmental law with ongoing ecological harm. Engineer A's paramount obligation to public welfare constrains any client-interest-based justification for silence or inaction.
Engineer A is constrained by the foundational engineering canon that public welfare — including protection of wetland ecosystems and compliance with federal and state environmental law — must be held paramount over client interests, prohibiting Engineer A from remaining silent about or acquiescing in the client's unauthorized wetland fill activity even if the client asserts confidentiality interests or objects to Engineer A's involvement following contract completion.
NSPE Code of Ethics Section I.1; NSPE Code Section II.1.a; Sustainable Development Ethics Provision
From the moment of incidental observation, continuing throughout Engineer A's professional response to the violation
Engineer A Public Welfare Paramount Environmental Violation
Public Welfare Paramountcy Recognition Capability
Engineer A possesses the capability to recognize that the paramount obligation to protect public welfare — including wetland ecosystem protection and compliance with federal and state environmental laws — overrides any residual client loyalty or confidentiality considerations arising from the prior contractual relationship.
Applied when weighing post-contract client loyalty against public welfare obligations triggered by observed environmental violation
Recognition that public welfare obligations require action despite the post-contract status and any client expectation of confidentiality
Engineer A Public Welfare Paramount Wetland Fill Environmental Violation
The unauthorized installation of fill material on more than half an acre of delineated wetlands without permits constitutes a substantial violation of federal and state environmental laws, implicating public welfare through environmental harm to protected wetland resources.
Engineer A is obligated to hold paramount the public welfare — including the protection of wetland ecosystems and compliance with federal and state environmental laws — over any residual loyalty to the former client, and to take affirmative action to address the observed unauthorized wetland fill that constitutes a substantial violation of federal and state law.
Upon incidental observation of the unauthorized wetland fill
Engineer A Public Welfare Paramount Wetland Fill Environmental Violation Individual
The paramount public welfare obligation is the foundational constraint that drives all of Engineer A's obligations in this case — to contact the client, direct remediation, monitor compliance, and escalate to regulatory authorities if the client fails to act.
Engineer A's paramount obligation to hold public welfare paramount — including protection of wetland ecosystems and compliance with federal and state environmental law — constrains Engineer A from remaining silent about the confirmed unpermitted wetland fill, regardless of any client interest in non-disclosure or the completion of the contracted scope of services.
NSPE Code of Ethics Section I; Present BER Case Analysis
Sometimes engineers are placed in situations where they must balance the extent of their obligations to their employer or client with their obligations to protect the public health and safety.
Engineer A Remediation Monitoring Obligation State
From Engineer A's initial confrontation of the client through Engineer A's satisfaction that remediation is complete or decision to report to authorities
Confirmed Environmental Law Violation Remediation Monitoring State
Engineer A's ongoing monitoring obligation following confrontation of client about wetland fill violations
Engineer A's satisfaction that remediation is complete and compliant, or Engineer A's report to appropriate authorities upon client's failure to act
the engineer should advise that the all remedial actions should be in full compliance with all applicable environmental laws and regulations, which may include the review of a licensed engineer.
Client's indication that corrective steps will be taken following Engineer A's confrontation about the violations
Engineer A Scope Completion Non-Excuse Environmental Violation Silence Wetland Fill
Engineer A completed the wetland delineation contract before observing the unauthorized fill. The BER's analysis establishes that contract completion does not discharge the professional obligation to respond to confirmed environmental law violations observed incidentally after contract completion.
Scope Completion Non-Excuse Environmental Violation Silence Constraint
Engineer A's completion of the wetland delineation contract and the absence of any ongoing monitoring obligation does not excuse or justify silence about the subsequently observed unpermitted wetland fill — the professional obligation to respond to confirmed environmental law violations persists regardless of contract completion status.
Although the NSPE Board of Ethical Review has had occasion to address similar issues in the past, it has not addressed the issue in the context of a client's apparent violation of environmental laws and regulations relating to wetland mitigation efforts.
From the moment Engineer A observes the unpermitted wetland fill after contract completion
Engineer A Scope Completion Non-Excuse Silence Constraint Wetland Fill
Engineer A's wetland delineation contract was completed months before the incidental observation. The absence of ongoing monitoring obligations does not relieve Engineer A of the professional duty to respond to a confirmed environmental law violation observed on the formerly contracted site.
Scope Limitation Non-Exculpation for Known Safety Risk Constraint
Engineer A is constrained from treating the completion of the wetland delineation contract and the absence of any ongoing monitoring obligation as a justification for remaining silent about the observed unauthorized wetland fill — the contracted scope boundary does not exculpate Engineer A from the professional obligation to disclose and respond to a confirmed, substantial environmental law violation observed incidentally after contract completion.
NSPE Code of Ethics Sections I.1, II.1.a; Post-Contract Environmental Observation Scope-of-Work Non-Excuse Obligation
A few months after Engineer A completes the services, he drives by his client's property
From the moment of incidental observation of the unpermitted fill, notwithstanding the prior completion of the wetland delineation contract
Engineer A Wetland Delineation Environmental Engineer
{'license': 'Professional Engineer (Environmental)', 'specialty': 'Wetland delineation and environmental compliance', 'discovery_method': "Incidental observation while driving by former client's property"}
Performed wetland delineation services on the client's property and subsequently discovered that the client had illegally filled more than half an acre of delineated wetlands without required permits, triggering obligations to confront the client and report the violation to appropriate authorities.
{'type': 'reporter_to', 'target': 'Environmental Regulatory Authorities'}
{'type': 'service_provider_to', 'target': 'Client'}
Wetland Delineation Environmental Engineer
he drives by his client's property and notices that the client has installed a substantial amount of fill material
Engineer A Wetland Delineation Environmental Engineer Client Remediation Monitoring
Client Remediation Monitoring Capability
Engineer A possesses the capability to monitor the client's remediation of the unauthorized wetland fill after initial confrontation, assessing whether promised corrective steps are being taken and determining when the situation has been sufficiently remedied or when escalation to regulatory authorities is required.
After confronting the client about the unauthorized wetland fill, Engineer A must monitor remediation progress and assess when escalation is required
The obligation identified by the BER to monitor the situation until sufficiently satisfied that it has been remedied, and to escalate to appropriate authorities if the client fails to take appropriate steps
Engineer A Wetland Delineation Environmental Engineer Confidentiality Non-Override
Engineer A possesses the capability to assess whether any confidentiality expectation the client might assert regarding Engineer A's knowledge of the unauthorized wetland fill bars disclosure to regulatory authorities, and to correctly determine that confidentiality does not apply when the disclosure involves a confirmed violation of federal and state environmental laws constituting apparent danger to the public interest.
Engineer A must recognize that any confidentiality expectation does not bar reporting of the confirmed environmental law violation
The BER's conclusion that the client's violation of environmental laws creates an obligation to report to appropriate authorities that is not barred by confidentiality, distinguishing the present case from BER 89-7 where confidentiality was a more significant factor
there are various rationales for the nondisclosure language contained in the NSPE Code of Ethics.
Engineer A Wetland Delineation Environmental Engineer Domain Expertise Violation Reporting Threshold
Domain Expertise Violation Reporting Threshold Differentiation Capability
Engineer A, as an environmental engineer who performed the wetland delineation on the very site where the violation occurred, possesses the capability to recognize that his domain expertise in wetland environmental engineering — combined with the confirmed nature of the violation — places him in a categorically different position than the engineers in BER 89-7 and BER 97-13, who lacked expertise in the relevant technical domains, and to calibrate his reporting obligation accordingly as more direct and immediate.
Engineer A must recognize that his environmental engineering expertise makes his reporting obligation more direct than in analogous cases where engineers lacked domain expertise
The BER's distinction between the present case (environmental engineer with domain expertise observing a confirmed legal violation) and BER 89-7 and BER 97-13 (engineers without expertise in the relevant technical domains observing speculative conditions)
Engineer A Wetland Delineation Environmental Engineer Environmental Law Violation Client Contact
Engineer A, as an environmental engineer who performed wetland delineation on the client's property, possesses the capability to contact the client upon observing the unauthorized wetland fill, inquire about the actions taken, point out the violations of federal and state law, and direct the client to take remedial steps in full compliance with applicable environmental laws and regulations.
Engineer A observes post-contract that the client has illegally filled wetlands that Engineer A previously delineated, and must contact the client to address the violation
Recognition that the client's installation of fill material on more than half an acre of delineated wetlands constitutes a violation of federal and state environmental laws, triggering the obligation to contact the client directly and point out the violation
Engineer A Wetland Delineation Environmental Engineer Faithful Agent Boundary
Faithful Agent Obligation Scope Boundary Recognition Capability
Engineer A possesses the capability to recognize that the faithful agent obligation to the client is fulfilled by honestly advising the client of the observed violation and directing remediation, and that the faithful agent role does not require suppressing or withholding the violation from regulatory authorities when the client fails to take appropriate remedial steps.
Engineer A must navigate the tension between faithful agent duties to the client and the paramount obligation to report confirmed environmental violations to regulatory authorities
The BER's analysis that Engineer A must balance faithful agent obligations with the paramount obligation to hold public health and safety paramount, and that the faithful agent duty does not bar escalation to regulatory authorities when the client fails to remediate
Engineer A Wetland Delineation Environmental Engineer Heightened Stewardship
Engineer A, having performed the wetland delineation services on the very site where the unauthorized fill was subsequently installed, possesses a heightened environmental stewardship capability arising from the combination of specialized environmental engineering expertise and prior site-specific engagement — enabling recognition of the amplified duty to respond to the observed violation.
Engineer A performed the wetland delineation on the very site where the client subsequently installed unauthorized fill, creating a heightened stewardship obligation
Engineer A's prior performance of wetland delineation services on the client's property, combined with environmental engineering credentials, creating a heightened obligation to respond to the observed unauthorized fill
Engineer A, as an environmental engineer who performed wetland delineation services on the very site where the unauthorized fill was installed, bears a heightened professional stewardship obligation.
Engineer A Wetland Delineation Environmental Engineer Post-Client-Refusal Regulatory Escalation
Engineer A possesses the capability to assess whether the client's failure to take appropriate remediation steps — after being confronted about the unauthorized wetland fill — requires escalation to appropriate regulatory authorities, and to act on that assessment by making the formal regulatory report.
If the client refuses to remediate the unauthorized wetland fill after confrontation, Engineer A must escalate to regulatory authorities
The BER's conclusion that if appropriate steps are not taken by the client, Engineer A has an obligation to bring the matter to the attention of appropriate authorities
Engineer A Wetland Delineation Environmental Engineer Public Welfare Paramountcy
Engineer A possesses the capability to recognize that the paramount obligation to hold public welfare — including protection of wetland ecosystems and compliance with federal and state environmental laws — overrides client loyalty and faithful agent duties when the client has committed a confirmed violation of environmental law.
Engineer A must recognize that public welfare paramountcy requires action despite the terminated client relationship and any confidentiality expectations
The BER's analysis that the obligation to hold paramount public health and safety overrides the faithful agent obligation when the client has violated federal and state environmental laws
Engineer A Wetland Delineation Environmental Engineer Wetland Fill Remediation Technical Assessment
Wetland Fill Remediation Technical Assessment Capability
Engineer A, as an environmental engineer who performed wetland delineation on the site, possesses the technical capability to assess the remediation requirements for the unauthorized wetland fill — including evaluating the extent of fill material, identifying applicable restoration standards, and formulating technically sound remediation direction — sufficient to advise the client that remedial actions must be in full compliance with all applicable environmental laws and regulations.
Engineer A must provide technically sound remediation direction to the client regarding the unauthorized wetland fill
The BER's conclusion that Engineer A should advise the client that all remedial actions must be in full compliance with applicable environmental laws and regulations, which may include the review of a licensed engineer
Engineer A Wetland Delineation Environmental Engineer Wetland Regulatory Framework
Wetland Regulatory Framework Knowledge Capability
Engineer A possesses knowledge of the federal and state regulatory framework governing wetland protection — including Clean Water Act Section 404 permit requirements and state wetland protection statutes — sufficient to recognize the client's unauthorized fill as a substantial legal violation and to identify the applicable regulatory authorities to whom the violation must be reported if the client fails to remediate.
Engineer A must apply wetland regulatory framework knowledge to recognize the violation and identify reporting obligations
Recognition that the client's installation of fill material on more than half an acre of delineated wetlands constitutes a violation of federal and state environmental laws and regulations
the facts in the present case indicate a violation of the federal and state laws and regulations.
Engineer A Wetland Delineation Environmental Engineer Written Documentation
Engineer A possesses the capability to document in writing the confrontation with the client regarding the unauthorized wetland fill — including the date of the observation, the nature of the violation, the client's response, and any assurances of remediation — creating a documented record for accountability purposes and as a basis for further escalation if required.
Engineer A must document the client confrontation and all subsequent communications regarding the unauthorized wetland fill
The obligation identified in the case for Engineer A to document the confrontation with the client and maintain records of all communications regarding the unauthorized wetland fill
Engineer A is obligated to document in writing the confrontation with the client regarding the unauthorized wetland fill — including the date of the observation, the nature of the violation, the client's response, and any assurances of remediation.
Engineer A Wetland Fill Regulatory Compliance Constraint Individual
The legal framework establishing the client's violation is the foundational constraint that grounds all of Engineer A's professional obligations in this case.
Wetland Fill Permit Regulatory Compliance Constraint
Federal statutes including Clean Water Act Section 404 and applicable state wetland protection laws establish that the client's placement of fill material in jurisdictionally delineated wetlands without required permits constitutes a substantial violation of law — constraining Engineer A from facilitating, ignoring, or remaining silent about the unpermitted wetland fill activity, and establishing the legal baseline against which Engineer A's professional reporting obligations are measured.
Clean Water Act Section 404; State Wetland Protection Laws; NSPE Code of Ethics
From the moment the unpermitted fill was installed through full regulatory compliance restoration
Engineer A Wetland Fill Remediation Technical Assessment
Engineer A, as an environmental engineer with wetland delineation expertise, possesses the technical capability to assess the remediation requirements for the unauthorized fill — including evaluating the extent of fill, identifying applicable restoration standards, and formulating technically sound remediation direction — sufficient to provide actionable guidance to the client.
Applied when formulating remediation direction for client following observation of unauthorized wetland fill on former client's property
Ability to direct the client to take remedial steps in full compliance with applicable environmental laws based on technical assessment of the unauthorized fill condition
Engineer A Wetland Regulatory Framework Knowledge
Engineer A, as an environmental engineer who performed wetland delineation services, possesses advanced knowledge of federal and state wetland regulatory frameworks sufficient to recognize that unauthorized fill installation on more than half an acre of delineated wetlands constitutes a substantial violation of law.
Applied upon incidental post-contract observation of unauthorized wetland fill on former client's property
Recognition that the client's fill installation without permits, variances, or permissions constitutes a substantial violation of federal and state laws and regulations
{'license': 'Professional Engineer', 'specialty': 'Environmental engineering (implied)', 'knowledge_basis': 'Direct expert knowledge of violation, not speculation'}
The primary engineer in the present case who has discovered that the client has violated federal and state environmental laws and regulations relating to wetland mitigation efforts, bearing obligations to confront the client, monitor remediation, and report to authorities if corrective action is not taken.
{'type': 'reports_to_if_needed', 'target': 'Appropriate environmental regulatory authorities'}
{'type': 'serves', 'target': 'Client (wetland mitigation project)'}
Engineer A's actions appear to be obvious—contact the client and inquire directly about the actions the client has taken
If appropriate steps are not taken by the client, the engineer would have an obligation to bring this matter to the attention of the appropriate authorities
the engineer should monitor the situation until the engineer is sufficiently satisfied that the situation has been remedied
Engineer A Written Documentation Constraint Wetland Fill Client Contact
Engineer A must document in writing the confrontation with the client regarding the unauthorized wetland fill, including the date of observation, the nature of the violation, the client's response, and any refusal to remediate — to support subsequent regulatory escalation if needed.
Verbal-Only Safety Notification Written Follow-Up Constraint
Engineer A is constrained from relying solely on verbal communication with the client about the unauthorized wetland fill — any contact with the client regarding the violation, the client's response, and any refusal to remediate must be documented in writing to create a verifiable record that supports subsequent escalation to regulatory authorities if the client fails to act.
NSPE Code of Ethics; Professional documentation standards; BER Case precedent on written safety notification requirements
From the initial contact with the client about the observed violation, continuing through any escalation to regulatory authorities
Engineer A Written Documentation Wetland Confrontation
Written Communication Follow-Up After Verbal Safety Notification Capability
Engineer A possesses the capability to document in writing the confrontation with the client regarding the unauthorized wetland fill — including the date of the observation, the nature of the violation, the client's response, and any remediation directions provided — creating a documented record for accountability and potential regulatory escalation.
Applied when documenting client contact regarding unauthorized wetland fill for accountability and escalation purposes
Obligation to document client confrontation in writing to create a professional record supporting potential regulatory escalation
Engineer A Written Documentation Wetland Confrontation Client Contact
When Engineer A contacts the client about the unauthorized wetland fill, Engineer A should create a written record of that communication to preserve evidence of the professional obligation discharge and to support any subsequent regulatory escalation if the client refuses to remediate.
Engineer A is obligated to document in writing the confrontation with the client regarding the unauthorized wetland fill — including the date of the incidental observation, the nature of the violation observed, the demand for remediation, and the client's response — so that a record exists of Engineer A's professional action and the client's assumption of responsibility for the violation.
At the time of or immediately following the client confrontation regarding the unauthorized wetland fill
Engineer A completes wetland delineation services before Engineer A observes illegal fill material on wetlands
Engineer A contacts client about violation before Engineer A monitors remediation
Engineer A monitors remediation before Engineer A reports to appropriate authorities
Engineer A verbally reports defective wall condition to client (Case 97-13) before client verbally reports information to public agency
Engineer A's bridge inspection (Case 97-13) during scheduled bridge overhaul project
Engineer Public Safety Escalation Standard
Professional engineering ethics bodies and licensing boards
a few months after Engineer A completes the services, he drives by his client's property and notices that the client has installed a substantial amount of fill material
Engineer A in determining whether and how to report the observed violation to regulatory authorities
Governs Engineer A's duty to escalate the discovered wetland violation beyond the former client relationship to regulatory authorities, given that the client has taken no corrective action and the violation constitutes a substantial breach of federal and state law with environmental consequences.
Engineer Public Safety Escalation Standard - Wetland Violation Context
NSPE Board of Ethical Review through accumulated case decisions
Professional Norms Governing Engineer Escalation of Environmental Law Violations to Public Authorities
Engineer A's actions appear to be obvious—contact the client and inquire directly about the actions the client has taken and point out the violations of the law and that immediate steps need to be taken to remedy the violation
If the client indicates that those steps will be taken, the engineer should monitor the situation until the engineer is sufficiently satisfied that the situation has been remedied
NSPE Board of Ethical Review in prescribing Engineer A's obligations
Applied to determine the graduated steps Engineer A must take when discovering client violations of environmental law: first contact the client, then monitor remediation, and if corrective action is not taken, escalate to appropriate authorities
Federal and state environmental regulatory agencies
without any permits, variances, or permissions
substantial violation of the federal and state laws and regulations
Engineer A in characterizing the severity of the observed violation
Provides the regulatory baseline for assessing the client's obligation to obtain permits before placing fill in wetlands, and grounds Engineer A's professional assessment that the observed activity constitutes a substantial violation requiring professional response.
Environmental Law Violation Reporting Obligation Invoked By Engineer A
Scope-of-work limitation as incomplete ethical defense
Engineer A, having discovered through incidental post-contract observation that the client has illegally filled more than half an acre of delineated wetlands without permits, is obligated to first confront the client and demand remediation, and then — if the client fails to act — to report the violation to appropriate federal (Army Corps of Engineers, EPA) and state environmental regulatory authorities.
The two-step obligation (confront then report) applies with particular force here because: (1) Engineer A has specialized environmental expertise that makes the violation's significance clear; (2) the violation is substantial in scale (more than half an acre); (3) the violation is of federal and state law, not merely a technical standard; and (4) wetland fill is typically irreversible without regulatory intervention.
he drives by his client's property and notices that the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands without any permits, variances, or permissions.
The environmental law violation reporting obligation overrides client loyalty and any confidentiality expectation because the client's conduct is illegal, the harm is to a protected public resource, and the engineer's specialized knowledge creates a heightened duty to act
Environmental Law Violation Reporting Obligation Invoked for Wetland Fill
Client's unauthorized installation of fill material on more than half an acre of delineated wetlands
Post-Client-Refusal Escalation Assessment Obligation
Engineer A, having discovered that the client illegally filled more than half an acre of delineated wetlands in violation of federal and state environmental laws, must first confront the client directly and demand remediation, and then — if the client fails to act — report the violation to appropriate regulatory authorities.
The two-step obligation (client confrontation first, then regulatory reporting if client fails) applies with full force here because Engineer A has domain expertise in wetland delineation and the violation is factually confirmed — unlike prior BER cases where speculation and lack of expertise warranted a more measured approach.
The Board distinguishes this case from BER Cases 89-7 and 97-13 on the grounds that the present violation is factually confirmed and within Engineer A's area of expertise, making the reporting obligation clear and the client-first confrontation approach appropriate as the first step rather than the final step.
Environmental Stewardship Invoked By Engineer A Wetland Discovery
Federal and state wetland protection laws
Engineer A's identity as an environmental engineer and prior engagement in wetland delineation services creates a heightened environmental stewardship obligation that extends beyond the completed contract — when Engineer A observes the client's illegal destruction of the delineated wetlands, the stewardship principle requires professional action to protect those resources.
Environmental stewardship is particularly acute here because Engineer A personally performed the wetland delineation that identified and mapped the very wetlands now being illegally destroyed. The engineer's prior professional work created a relationship with the specific environmental resource now at risk, intensifying the stewardship obligation.
Environmental Stewardship in Engineering Practice
Environmental stewardship obligation extends beyond the contracted scope and the completed engagement; the engineer's specialized environmental knowledge and prior delineation work create a continuing duty to protect the identified wetland resources
Environmental Stewardship in Engineering Practice Invoked for Wetland Protection
Illegal filling of delineated wetlands in violation of federal and state environmental laws
Engineer A's professional obligation to protect environmental resources — specifically the delineated wetlands that are the subject of the client's illegal fill — extends beyond the contracted scope of wetland delineation services to encompass the obligation to respond to the client's subsequent destruction of those resources.
Environmental stewardship in this context is not merely a design consideration but an active obligation to respond to discovered environmental law violations — the engineer's professional proximity to the environmental resource creates a heightened stewardship obligation.
Environmental stewardship obligation reinforces and is reinforced by the public welfare paramount obligation — together they override the client loyalty and confidentiality considerations that might otherwise counsel restraint.
Ethical Precedent Established (BER 89-7)
Ethical Precedent Established (BER 89-7) (Event 5) → Safety Violations Not Reported (BER 89-7) (Action 5) — establishing the affirmative duty standard applied to Engineer A
Ethical Precedent Established (BER 97-13)
Ethical Precedent Established (BER 97-13) (Event 6) → Bridge Defect Verbally Reported Only (BER 97-13) (Action 6) — establishing the written reporting standard applied to Engineer A
Expertise-Calibrated Disclosure Threshold Principle Invoked Comparatively Across Three Cases
Comparative analysis of disclosure obligations across three BER cases with varying levels of engineer expertise in the relevant technical domain
Incidental Observation Disclosure Obligation
The Board's comparative analysis of BER Cases 89-7, 97-13, and the present case demonstrates that the form and urgency of disclosure obligations are calibrated to the engineer's domain expertise: in 89-7 and 97-13, lack of expertise in the relevant technical domain (electrical/mechanical; structural) warranted a more measured approach, while in the present case Engineer A's domain expertise in wetland delineation makes the disclosure obligation immediate and unambiguous.
Domain expertise in the technical area of the observed condition is a key variable in determining the form, urgency, and reach of the disclosure obligation — engineers with clear expertise bear stronger and more immediate obligations than engineers whose observations are based on general surmise.
Expertise-Calibrated Disclosure Threshold Principle
The Board resolves the tension by treating domain expertise as a threshold variable: when present, it strengthens the disclosure obligation; when absent, it counsels a more measured approach that still requires some form of notification but not formal written disclosure or regulatory reporting.
In BER Case No. 89-7, for example, the facts revealed that the client had confided in the engineer and may have relied upon the engineer to maintain the information in confidence. In addition, the engineer in BER Case No. 89-7 did not have any particular expertise in the technical areas (mechanical, electrical) involved in the matter at issue.
In contrast, the facts in the present case indicate a violation of the federal and state laws and regulations. Engineer A's actions appear to be obvious—contact the client and inquire directly about the actions the client has taken and point out the violations of the law and that immediate steps need to be taken to remedy the violation.
Similarly, in BER Case No. 97-13, the engineer's evaluation was based upon general surmise and speculation about the cause of the structural failure of the wall, based entirely upon a visual inspection without anything more. In addition, as in BER Case No. 89-7, there was nothing noted in the facts to indicate that Engineer A had expertise in the specific discipline involved—structural engineering.
Faithful Agent Obligation Within Ethical Limits Invoked for Client-First Confrontation
Decision about whether to immediately report to regulatory authorities or first confront the client
Engineer A's faithful agent obligation to the client is expressed in the requirement to first confront the client directly about the wetland violation — giving the client the opportunity to cure the violation voluntarily — before escalating to regulatory authorities, thereby respecting the client relationship within the bounds of the overriding public welfare and environmental law compliance obligations.
The faithful agent obligation shapes the sequence of Engineer A's response — client-first confrontation before regulatory reporting — but does not override the ultimate obligation to report if the client fails to act.
Faithful Agent Obligation Within Ethical Limits
The faithful agent obligation is satisfied by the client-first confrontation requirement, which gives the client a reasonable opportunity to cure the violation before the engineer's escalation obligation is triggered — but the faithful agent obligation does not extend to indefinite forbearance from regulatory reporting.
Federal Wetland Fill Regulations (Clean Water Act Section 404)
U.S. Congress / U.S. Army Corps of Engineers / EPA
Clean Water Act Section 404 and Implementing Regulations
Wetland Fill Permit Regulatory Framework
Engineer A in assessing the severity and legal character of the observed violation
Establishes the federal legal framework that the client's unpermitted fill activity violates, grounding Engineer A's professional obligation to respond to a substantial legal violation discovered on a formerly delineated site.
Federal and State Wetland Environmental Laws and Regulations
Federal and State Environmental Laws and Regulations Governing Wetland Mitigation
Although the NSPE Board of Ethical Review has had occasion to address similar issues in the past, it has not addressed the issue in the context of a client's apparent violation of environmental laws and regulations relating to wetland mitigation efforts
the engineer should advise that the all remedial actions should be in full compliance with all applicable environmental laws and regulations, which may include the review of a licensed engineer
NSPE Board of Ethical Review in determining Engineer A's obligations upon discovering client violations
Referenced as the legal framework being violated by the client's actions, establishing the legal standard against which Engineer A must measure the client's conduct and the basis for the engineer's obligation to report non-compliance to appropriate authorities
Illegal Fill Material Placed (Event 2) → Federal Environmental Laws Violated (Event 4)
Illegal Fill Observed by Engineer (Event 3) → Client Contacted About Violations (Action 2)
Incidental Observation Disclosure Obligation Invoked By Engineer A Post-Contract Drive-By
Post-contract incidental observation of unauthorized wetland fill
Engineer A's incidental post-contract observation of the client's unauthorized wetland fill — made while driving by the property, not while performing contracted services — nonetheless triggers a professional disclosure obligation because the observation is material, within Engineer A's domain of expertise, and implicates public welfare and environmental law compliance.
The incidental nature of the observation (driving by, not performing contracted work) does not diminish the disclosure obligation. The engineer's specialized environmental expertise makes the significance of the observation clear, and the materiality of the violation (substantial fill, no permits, federal and state law violations) triggers the disclosure duty regardless of the absence of a contractual obligation to monitor the site.
The incidental observation disclosure obligation applies because the observation is material and within the engineer's expertise; the completed contract and absence of monitoring obligation do not discharge the professional duty triggered by actual knowledge of a substantial violation
Incidental Observation Disclosure Obligation Invoked for Wetland Fill Discovery
Discovery of illegal wetland fill outside contracted scope of wetland delineation services
Scope-of-Work Limitation as Incomplete Ethical Defense
Engineer A, while performing wetland delineation services, observed that the client had subsequently installed illegal fill on the delineated wetlands — an observation outside the contracted scope of work — and bears an obligation to disclose this observation to the client and, if the client fails to act, to appropriate regulatory authorities.
The incidental observation obligation applies with full force here because Engineer A has domain expertise in wetland delineation, making the observation factually certain rather than speculative — unlike BER Case 97-13 where the engineer lacked structural engineering expertise and the observation was based on general surmise.
The scope-of-work limitation does not excuse Engineer A from acting on the incidental observation because the observation is factually certain, within Engineer A's domain of expertise, and implicates confirmed violations of federal and state law.
Loyalty Obligation Bounded By Environmental Law Compliance In Wetland Case
Engineer A's loyalty obligation to the client — arising from the prior professional engagement for wetland delineation services — does not extend to remaining silent about the client's illegal destruction of protected wetland resources, because loyalty is bounded by the engineer's public welfare and environmental stewardship obligations.
Loyalty to a client is a legitimate professional value that shapes how engineers approach client relationships, but it is explicitly bounded by ethical limits including public welfare obligations and legal compliance. The client's illegal conduct places the loyalty obligation in direct tension with the environmental law violation reporting obligation, and the latter prevails.
Client loyalty does not extend to protecting clients from accountability for illegal conduct that harms public environmental resources; the loyalty obligation is overridden by the environmental law violation reporting obligation
NSPE Code of Ethics - Confidentiality and Public Safety Provisions
National Society of Professional Engineers
As noted in BER Case No. 89-7, there are various rationales for the nondisclosure language contained in the NSPE Code of Ethics
the obligation of the engineer to be faithful to the client and not to disclose confidential information concerning the business affairs of a client without that client's consent, and the obligation of the engineer to hold paramount the public health and safety
NSPE Board of Ethical Review in analyzing Engineer A's obligations
Cited as the primary normative authority establishing both the duty of confidentiality to clients and the paramount obligation to protect public health and safety, and the nondisclosure language that creates the ethical tension in this case
Engineer A in determining professional obligations after observing the violation
Primary normative authority governing Engineer A's professional obligations upon discovering the client's unpermitted wetland fill, including duties to hold paramount public safety and welfare, avoid deceptive acts, and act in accordance with professional obligations when a former client violates law.
Police Officer B accident before scheduled overhaul of the bridge begins
Post-Client-Refusal Escalation Assessment Invoked By Engineer A Wetland Case
Client's potential refusal to remediate unauthorized wetland fill
Escalation decision following client confrontation
After Engineer A confronts the client about the unauthorized wetland fill and demands remediation, if the client refuses or fails to act, Engineer A must assess whether the nature, scale, and irreversibility of the violation — more than half an acre of illegally filled federally and state-protected wetlands — triggers a mandatory obligation to report to appropriate regulatory authorities including the Army Corps of Engineers and state environmental agency.
Given the substantial scale of the violation (more than half an acre), its illegal nature (no permits, variances, or permissions), and the irreversibility of wetland fill without regulatory intervention, the post-client-refusal escalation assessment is likely to conclude that mandatory regulatory reporting is required — the severity and irreversibility of the harm place this case at the high end of the escalation obligation spectrum.
The scale, illegality, and irreversibility of the wetland fill violation, combined with the client's failure to remediate after confrontation, trigger the mandatory regulatory reporting obligation; client loyalty and confidentiality do not override this obligation
Post-Client-Refusal Escalation Assessment Obligation Invoked for Wetland Remediation Failure
Client's potential failure to remediate illegal wetland fill after Engineer A's direct confrontation
If the client fails to take appropriate remediation steps after Engineer A's direct confrontation about the illegal wetland fill, Engineer A must assess whether the client's inaction triggers an obligation to report the violation to appropriate regulatory authorities — and the Board concludes that it does.
Unlike BER Case 97-13 where the Board gave the client time to take corrective action before triggering the escalation obligation, the present case involves a confirmed legal violation that generates a more immediate and certain escalation obligation upon client inaction.
Client inaction after confrontation about a confirmed environmental law violation triggers an unambiguous obligation to report to appropriate authorities — the escalation obligation is not discretionary when the underlying violation is factually confirmed and within the engineer's domain of expertise.
{'entity_type': 'Public government agency', 'authority': 'Infrastructure owner and decision-maker for corrective action'}
Public agency that retained VWX for the bridge overhaul, received verbal notification of the wall defect observation through the prime consultant, and was expected to take corrective action within a reasonable period.
{'type': 'notified_by', 'target': 'VWX Architects and Engineers Prime Consultant'}
{'type': 'obligated_to_act', 'target': 'Corrective action on wall defect'}
{'type': 'retained', 'target': 'VWX Architects and Engineers Prime Consultant'}
a public agency retained the services of VWX Architects and Engineers
VWX Architects and Engineers which then contacted Engineer A and asked Engineer A not to include this additional information in his final report since it was not part of his scope of work
it was ethical for Engineer A not to report this information to any other public agency or authority as long as corrective action was taken by the public agency within a relatively short period of time
Public Welfare Paramount Invoked By Engineer A Wetland Violation
Client's unauthorized wetland fill violation
Federal and state environmental law compliance
Engineer A, having observed the client's unauthorized installation of fill material on more than half an acre of delineated wetlands in violation of federal and state law, faces an obligation to hold paramount the public welfare interest in protected wetland resources over any loyalty or confidentiality obligation to the client.
In this context, public welfare encompasses not only physical safety but also the protection of regulated environmental resources — wetlands — that serve critical ecological and public functions. The substantial and illegal nature of the fill (more than half an acre, no permits) elevates this beyond a minor infraction to a material public welfare threat.
Public welfare obligation to protect regulated wetland resources overrides any client loyalty or confidentiality claim because the client's conduct is illegal and the harm is to a protected public resource, not merely a private matter
Public Welfare Paramount Invoked in Wetland Violation Context
Client's illegal filling of more than half an acre of delineated wetlands in violation of federal and state environmental laws
The Board affirms that Engineer A's paramount obligation to protect public health and safety — including environmental welfare — overrides client confidentiality and faithful agent duties when the client has committed a confirmed violation of federal and state environmental laws relating to wetland mitigation.
In this context, public welfare encompasses environmental protection and legal compliance with wetland mitigation laws, not merely immediate physical safety to persons — expanding the scope of the paramount obligation beyond traditional safety contexts.
The Board concludes that the confirmed factual nature of the environmental law violation, combined with Engineer A's domain expertise, makes the public welfare obligation clear and immediate — distinguishing this case from prior cases where speculation and lack of expertise warranted a more measured approach.
What are Engineer A’s ethical obligations under these facts?
Does Engineer A's prior professional involvement in delineating the wetland boundaries create a heightened duty of care compared to a completely unrelated engineer who happened to observe the same violation, given that Engineer A's own work product may have informed the client's understanding of the regulated area?
At what point, if any, does Engineer A's obligation to report the violation to authorities become immediate rather than contingent on first exhausting client engagement, particularly given that ongoing unpermitted fill may be causing irreversible ecological harm with each passing day?
Does Engineer A bear any professional responsibility for the client's violation if the wetland delineation report was ambiguous or insufficiently clear about the regulatory boundaries, and how does that potential contributory role affect the ethical calculus of reporting?
What specific form should Engineer A's written documentation of the client confrontation take, and does the failure to document the interaction in writing expose Engineer A to professional or legal liability if the client later denies having been informed of the violation?
Does the Faithful Agent Obligation Within Ethical Limits conflict with the Environmental Law Violation Reporting Obligation when the client has not yet been given an opportunity to respond, and how should Engineer A sequence these competing duties to honor both without prematurely betraying client trust or impermissibly delaying public protection?
Does the Confidentiality Non-Applicability to Public Danger principle conflict with the general confidentiality obligation under Code provisions II.1.c and III.4 when the violation involves regulatory non-compliance rather than an imminent threat to human life, and should the threshold for overriding confidentiality be lower for confirmed environmental law violations than for speculative safety hazards as illustrated by the contrast between BER 89-7 and BER 97-13?
Does the Scope-of-Work Limitation as Incomplete Ethical Defense principle conflict with the Incidental Observation Disclosure Obligation in a way that creates an indeterminate and potentially unbounded post-contract monitoring duty, and if so, how should the profession define the temporal and geographic limits of an engineer's incidental observation obligations after a contract is complete?
Does the Public Welfare Paramount principle conflict with the Remediation Monitoring Obligation Post-Client-Confrontation when the client appears to be taking partial remediation steps that may be legally insufficient, forcing Engineer A to choose between accepting inadequate compliance to preserve the client relationship and escalating to authorities in a way that may expose the client to severe penalties that exceed the environmental harm caused?
From a deontological perspective, does Engineer A have an unconditional duty to report the client's unpermitted wetland fill to regulatory authorities, independent of whether doing so serves any beneficial outcome, simply because the violation of federal and state law creates a categorical obligation under the NSPE Code of Ethics to hold public welfare paramount?
From a consequentialist perspective, does the aggregate environmental harm caused by unpermitted filling of more than half an acre of wetlands — including downstream ecological degradation, loss of flood mitigation capacity, and harm to public water quality — sufficiently outweigh any loyalty Engineer A owes to the client as a faithful agent, such that immediate escalation to regulatory authorities produces the best overall outcome even if the client relationship is destroyed?
From a virtue ethics perspective, does the character of a professionally excellent environmental engineer — one who possesses not merely technical competence in wetland delineation but also genuine environmental stewardship as a constitutive professional virtue — demand that Engineer A act on the incidental observation of the client's violation even though the engineering services contract has been completed and no formal ongoing obligation exists?
From a deontological perspective, does the confidentiality duty Engineer A owes to the client under NSPE Code provisions create a genuine moral conflict with the duty to report environmental law violations to authorities, and if so, which duty takes categorical precedence — and does the answer change depending on whether the harm is characterized as harm to the public or merely harm to a regulated ecosystem?
If Engineer A had never driven past the client's property and had therefore never incidentally observed the unpermitted fill, would Engineer A have had any ethical obligation to investigate whether the client complied with environmental law after the wetland delineation services were completed — and does the accidental nature of the discovery diminish, amplify, or leave unchanged the resulting reporting obligation?
If the client, upon being contacted by Engineer A, immediately acknowledged the violation and committed in writing to pursuing a retroactive permit or full remediation, would Engineer A's ethical obligation to escalate to regulatory authorities be extinguished, suspended pending client action, or remain independently operative — and how does the Board's graduated engagement framework address the risk that the client's written commitment is made in bad faith to forestall regulatory scrutiny?
If Engineer A were not an environmental engineer but instead a structural engineer who happened to drive past the wetland site and observed the unpermitted fill, would the ethical obligation to contact the client and escalate to authorities be the same in kind and intensity — and does the domain expertise Engineer A possesses as a wetland delineation specialist create a heightened or qualitatively different duty compared to an engineer without environmental regulatory knowledge?
If the unpermitted fill had been placed not by the client but by an unknown third party trespassing on the client's property, how would Engineer A's ethical obligations shift — would the duty to contact the client remain the same, would the duty to report to authorities become more immediate without the intermediate client-engagement step, and does the identity of the violator alter the moral calculus under the NSPE Code's public welfare paramountcy principle?
Remediation Monitoring Obligation Post-Client-Confrontation Invoked for Wetland Case
Client's assurance of remediation of illegal wetland fill
If the client assures Engineer A that remediation steps will be taken to cure the illegal wetland fill, Engineer A must actively monitor the remediation process — including verifying that all remedial actions comply with applicable environmental laws and regulations, which may require review by a licensed engineer — until Engineer A is sufficiently satisfied that the violation has been fully cured.
The monitoring obligation prevents the client's assurance from becoming a mechanism to indefinitely defer the escalation obligation — Engineer A's professional obligation is not discharged by the client's promise but only by verified, legally compliant remediation.
Remediation Monitoring Obligation Post-Client-Confrontation
The monitoring obligation bridges the gap between client confrontation and confirmed remediation — it is the mechanism by which the engineer verifies that the client's assurance has been fulfilled before concluding that the professional obligation is discharged.
Safety Violations Not Reported (BER 89-7)
Scope-of-Work Limitation Incomplete Defense Invoked In Post-Contract Wetland Observation
Faithful agent obligation within ethical limits
Engineer A's completed wetland delineation contract and the absence of any ongoing monitoring obligation do not constitute a complete ethical defense for inaction in response to the observed unauthorized wetland fill, because the observation is material, within the engineer's expertise, and implicates public welfare and environmental law obligations that supersede the contractual boundary.
The principle applies with particular force because Engineer A's contracted work (wetland delineation) is directly related to the violation observed (unauthorized fill of delineated wetlands) — the engineer is not observing something entirely outside their domain, but rather the illegal destruction of the very resource they were professionally engaged to identify and map.
Contract completion does not extinguish professional obligations triggered by actual knowledge of material violations; the scope-of-work limitation is an incomplete defense when the engineer has direct knowledge of a substantial environmental law violation
Scope-of-Work Limitation as Incomplete Ethical Defense Invoked for Wetland Violation
Client's illegal wetland fill discovered outside contracted scope of wetland delineation services
Engineer A's contractual scope of work — limited to wetland delineation services — does not excuse Engineer A from acting on the discovery that the client has illegally filled the delineated wetlands, because the observation is within Engineer A's technical knowledge, implicates confirmed violations of law, and triggers public welfare obligations that supersede contractual boundaries.
The scope-of-work limitation defense is distinguished from BER Case 97-13 (where it was partially accepted) because in the present case the observation is factually certain, within the engineer's domain of expertise, and constitutes a confirmed legal violation rather than mere speculation.
The Board implicitly rejects any scope-of-work defense by characterizing Engineer A's obligation as 'obvious' — the confirmed factual nature of the violation and Engineer A's domain expertise make the scope limitation irrelevant as an ethical defense.
Scope-of-Work Limitation as Incomplete Ethical Defense Invoked in BER 97-13 Context
Engineer A's contractual scope limitation to pavement damage inspection on the bridge overhaul project
In BER Case 97-13, the Board held that Engineer A's contractual scope limitation to pavement damage inspection did not completely excuse Engineer A from acting on the incidental observation of a potentially defective wall condition — requiring Engineer A to verbally report the observation and document it in engineering notes, even though formal written report inclusion was deemed inappropriate given the speculative nature of the observation.
The scope-of-work limitation partially constrained the form of disclosure (verbal notification rather than formal written report) but did not completely excuse Engineer A from acting on the incidental observation — establishing that scope limitations are incomplete ethical defenses even when they modulate the form of required action.
The public agency contacted VWX Architects and Engineers which then contacted Engineer A and asked Engineer A not to include this additional information in his final report since it was not part of his scope of work.
The Board accepted the scope limitation as a partial defense to formal written report inclusion (given the speculative nature of the observation and Engineer A's lack of structural expertise) but not as a complete defense to any form of disclosure — requiring verbal notification and documentation.
In deciding that (1) it was ethical for Engineer A to retain the information in his engineering notes but not include it in the final written report as requested, and (2) it was ethical for Engineer A not to report this information to any other public agency or authority as long as corrective action was taken by the public agency within a relatively short period of time...
State Wetland Protection Laws and Regulations
State legislature and environmental regulatory agency
State Wetland Protection Statutes and Regulations
Engineer A in assessing the full scope of the client's legal violations
Establishes the state-level legal framework that the client's unpermitted fill activity violates, supplementing federal requirements and potentially imposing additional reporting or notification obligations on environmental engineers.
Sustainable Development Ethics Provision
NSPE and professional engineering ethics bodies
Sustainable Development Ethics Provision (NSPE Code and analogous professional codes)
the client has installed a substantial amount of fill material on more than ½ an acre across a portion of the wetlands
Engineer A in framing the environmental and ethical significance of the client's violation
Provides normative grounding for Engineer A's professional obligation to protect wetland resources as part of the broader duty to safeguard the environment for future generations, reinforcing the ethical imperative to respond to the observed destruction of wetland resources.
U.S. Army Corps of Engineers Wetland Delineation Manual
Wetland Delineation Manual (Corps of Engineers Technical Report Y-87-1 and Regional Supplements)
Wetland Delineation Professional Practice Standard
Engineer A in performing wetland delineation services
Governs the technical methodology Engineer A used in performing wetland delineation services, establishing the professional standard of practice against which Engineer A's work and subsequent obligations are assessed.
VWX Architects and Engineers Prime Consultant
{'entity_type': 'Architecture and Engineering firm', 'contract_role': 'Prime consultant with overall project responsibility'}
Prime consultant retained by the public agency for a major bridge overhaul who retained Engineer A as sub-consultant, received verbal safety observations from Engineer A, relayed them to the public agency, and then instructed Engineer A not to include the observations in the final report.
{'type': 'communicated_with', 'target': 'Public Agency (BER 97-13)'}
{'type': 'retained', 'target': 'Engineer A BER 97-13 Sub-Consultant Bridge Inspector'}
{'type': 'retained_by', 'target': 'Public Agency (BER 97-13)'}
a public agency retained the services of VWX Architects and Engineers to perform a major scheduled overhaul of a bridge
The public agency contacted VWX Architects and Engineers which then contacted Engineer A and asked Engineer A not to include this additional information in his final report
VWX Architects and Engineers retained the services of Engineer A, a civil engineer, as its sub-consultant
Wetland Delineation Services Performed (Action 1) → Wetland Delineation Completed (Event 1)
{'entity_type': 'Private development client (implied)', 'violation_type': 'Federal and state wetland mitigation law violations'}
The client in the present case who has violated federal and state environmental laws and regulations relating to wetland mitigation efforts, and who must be directly confronted by Engineer A and directed to take immediate remedial action or face reporting to appropriate authorities.
{'type': 'retained', 'target': 'Engineer A Wetland Violation Discoverer'}
{'type': 'subject_to_reporting_by', 'target': 'Engineer A Wetland Violation Discoverer'}
Engineer A's actions appear to be obvious—contact the client and inquire directly about the actions the client has taken and point out the violations of the law
If the client indicates that those steps will be taken, the engineer should monitor the situation
Written Documentation Requirement Invoked For Engineer A Wetland Confrontation
Client confrontation about unauthorized wetland fill
When Engineer A confronts the client about the unauthorized wetland fill and demands remediation, Engineer A should document that confrontation and demand in writing — and follow up any verbal communication with written confirmation — to create a clear record of the notification, the client's response, and the basis for any subsequent regulatory reporting decision.
Written documentation is particularly important in the environmental law context because: (1) regulatory authorities may require evidence of prior client notification before accepting a complaint; (2) the written record protects the engineer from claims of fabrication or mischaracterization; and (3) the documentation creates an unambiguous record of the engineer's discharge of professional obligation.
Written Documentation Requirement for Safety Notification
No significant tension; written documentation supports all other applicable obligations without conflicting with them
client confides electrical/mechanical deficiencies to Engineer A (Case 89-7) during Engineer A performs structural investigation of apartment building
client installs fill material on wetlands before Engineer A observes the fill material violation
corrective action determination (Case 97-13) before reporting to public authority
public agency contacts VWX (Case 97-13) before VWX instructs Engineer A to exclude information from final report