Bowman
T.C.J.:
This
appeal
is
from
an
assessment
for
the
1994
taxation
year.
Although
the
notice
of
appeal
and
the
reply
raise
a
number
of
issues
counsel
for
the
parties
have
effectively
removed
everything
from
the
table
except
one
central
question,
that
is
to
say
whether
the
work
done
on
five
engineering
projects
which
have
been
selected
by
counsel
as
representative
constitutes
scientific
research
and
experimental
development
(“SRED”)
within
the
meaning
of
section
37
of
the
Income
Tax
Act
and
Part
XXIX
of
the
Regulations.
The
appellant
(“NHC”)
carries
on
a
specialized
branch
of
hydraulic
engineering.
Over
the
period
of
11
years
from
1983
to
1994
it
carried
out
17
projects
in
which
designs
were
tested
by
means
of
physical
models.
The
question
is
whether
those
projects
were
SRED.
Although
1994
is
the
only
year
before
the
court
the
parties
have
agreed
that
if
the
question
of
principle
is
determined
they
can
resolve
between
themselves
the
manner
in
which
such
determination
will
affect
not
only
the
1994
but
other
taxation
years,
including
the
appellant’s
entitlement
to
investment
tax
credits
and
refundable
investment
tax
credits.
The
following
is
an
accurate
description
of
the
history
and
business
of
NHC.
It
is
taken
from
the
report
of
the
expert
witness
Joe
Ploeg:
Northwest
Hydraulic
Consultants
(NHC)
was
incorporated
as
a
Canadian
company
by
a
small
group
of
professors
of
the
University
of
Alberta
in
1972.
It
has,
since
that
time,
grown
into
an
international
company,
with
a
staff
of
some
70
people,
of
which
about
60%
are
professionals,
and
with
offices
in
Canada
in
Edmonton,
Alta,
(Head
Office)
and
North
Vancouver,
B.C.
and
in
the
U.S.
in
Seattle,
Wash.
and
W-Sacramento,
Cal.
NHC
is
generally
known
as
an
engineering
consultant
firm,
specializing
in
the
development,
management
and
protection
of
water
resources.
Their
special
fields
of
experience
include
Hydraulic
Modelling,
Numerical
Modelling,
River
Engineering,
Environmental
Studies,
Hydrology
and
Storm
Water
Management.
The
17
projects
that
are
in
issue
are
hydraulic
model
studies
carried
out
at
NHC’s
North
Vancouver
office
for
non-Canadian
engineering
consulting
firms
or
the
engineering
departments
of
a
municipality
or
public
utility.
Although
the
subject
matter
of
the
projects
differs
they
have
in
common
the
construction
of
a
physical
model
generally
to
a
precise
scale
that
replicates
the
river
or
dam
or
other
construction
to
which
the
design
relates.
The
following
five
projects
were
chosen
by
counsel
as
representative:
1.
The
Belleville
(Lock
and
Dam)
Hydroelectric
Project.
This
project
involved
the
development
of
a
hydroelectric
generating
station
adjacent
to
an
existing
lock
and
dam.
2.
The
Schuylkill
River
Sedimentation
Study.
This
project
involved
the
development
of
a
design
to
reduce
the
deposition
of
sediment
in
front
of
an
existing
rowing
club
on
the
Schuylkill
River
in
Philadelphia.
3.
East
Rapti
Irrigation
Project.
This
project
involved
the
development
of
the
hydraulic
design
of
a
diversion
dam
and
intake
required
for
irrigation
water
supply.
4.
Walters
Dam
Apron
Repair.
This
project
required
the
development
of
a
design
that
would
eliminate
or
reduce
the
water
damage
to
the
concrete
apron
of
the
dam.
5.
White
River
Diversion
Dam.
This
involved
the
modification
of
the
design
of
a
diversion
dam
on
the
White
River.
Before
I
examine
each
of
these
projects
in
greater
detail
I
shall
set
out
the
guidelines
that
I
propose
to
follow
in
determining
whether
the
projects
fall
within
the
concept
of
SRED.
Under
the
Income
Tax
Act
SRED
has
the
meaning
given
to
it
by
regulation.
Section
2900(1)
of
the
Income
Tax
Act
Regulations
reads:
2900.(1)
For
the
purposes
of
this
Part
and
sections
37
and
37.1
of
the
Act,
“scientific
research
and
experimental
development”
means
systematic
investigation
or
search
carried
out
in
a
field
of
science
or
technology
by
means
of
experiment
or
analysis,
that
is
to
say,
(a)
basic
research,
namely,
work
undertaken
for
the
advancement
of
scientific
knowledge
without
a
specific
practical
application
in
view,
(b)
applied
research,
namely,
work
undertaken
for
the
advancement
of
scientific
knowledge
with
a
specific
practical
application
in
view,
(c)
experimental
development,
namely,
work
undertaken
for
the
purposes
of
achieving
technological
advancement
for
the
purposes
of
creating
new,
or
improve
existing,
materials,
devices,
products
or
processes,
including
incremental
improvements
thereto,
or
(d)
work
with
respect
to
engineering,
design,
operations
research,
mathematical
analysis,
computer
programming,
data
collection,
testing
and
psychological
research
where
that
work
is
commensurate
with
the
needs,
and
directly
in
support,
of
the
work
described
in
paragraph
(a),
(b)
or
(c),
but
does
not
include
work
with
respect
to
(e)
market
research
or
sales
promotion,
(f)
quality
control
or
routine
testing
of
materials,
devices,
products
or
processes,
(g)
research
in
the
social
sciences
or
the
humanities,
(h)
prospecting,
exploring
or
drilling
for,
or
producing,
minerals,
petroleum
or
natural
gas,
(i)
the
commercial
production
or
a
new
or
improved
material,
device
or
product
or
the
commercial
use
of
a
new
or
improved
process,
(j)
style
changes,
or
(k)
routine
data
collection.
The
appellant
relies
particularly
on
paragraph
(c)
of
that
definition.
Paragraph
(c)
of
the
French
version
reads:
c)
le
développement
expérimental,
à
savoir
les
travaux
entrepris
dans
l’intérêt
du
progrès
technologique
en
vue
de
la
création
de
nouveaux
matériaux,
dispositifs,
produits
ou
procédés
ou
de
l’amélioration,
même
légère,
de
ceux
qui
existent.
I
quote
this
paragraph
simply
because
the
words,
“de
l’amélioration,
même
légère,
de
ceux
qui
existent”
seem
to
clarify
any
ambiguity
that
may
be
found
in
the
words
“including
incremental
improvements
thereto”.
The
addition
of
these
words
in
1995
applicable
to
taxation
years
ending
after
December
2,
1992
appears
to
have
been
in
response
to
a
concern
that
the
achievement
or
attempted
achievement
of
slight
improvements
was
not
covered.
I
should
not
have
thought
it
was
necessary
to
say
so.
Most
scientific
research
involves
gradual,
indeed
infinitesimal,
progress.
Spectacular
breakthroughs
are
rare
and
make
up
a
very
small
part
of
the
results
of
SRED
in
Canada.
The
tax
incentives
given
for
doing
SRED
are
intended
to
encourage
scientific
research
in
Canada
(Consoltex
Inc.
v.
R.
(1997),
97
D.T.C.
724
(T.C.C.)).
As
such
the
legislation
dealing
with
such
incentives
must
be
given
“such
fair,
large
and
liberal
construction
and
interpretation
as
best
ensures
the
attainment
of
its
objects”
(Interpretation
Act,
section
12).
The
second
preliminary
observation
that
should
be
made
is
the
use
of
the
Information
Circular
86-4R3
which
sets
out
criteria
to
be
applied
in
determining
whether
an
activity
qualifies
as
SRED.
In
general
I
am
reluctant
to
rely
too
heavily
on
interpretation
bulletins
and
information
circulars
in
determining
contested
issues
under
the
Income
Tax
Act.
The
reason
for
this
is
that
in
any
litigious
situation
it
seems
somewhat
unfair
for
an
independent
arbiter
to
place
much
weight
on
the
rules
of
the
game
devised
by
one
of
the
players.
I
recognize
that
frequently
interpretation
bulletins
and
information
circulars
set
out
administrative
interpretations
and
practices
that
are
beneficial
to
the
taxpayer
and
I
am
reluctant
to
do
anything
that
would
cast
doubt
on
those
interpretations
or
practices.
There
is
a
further
consideration
that
relates
specifically
to
IC
86-4R3.
That
circular
has
been
revised
a
number
of
times.
Dr.
J.R.
Roberts
was
a
Senior
Science
Advisor
in
the
Department
of
National
Revenue
with
a
doctorate
in
organic
chemistry.
In
his
extremely
helpful
and
informative
testimony
he
described
in
some
detail
the
evolution
of
the
government’s
guidelines
with
respect
to
SRED
which
culminated
in
IC
86-4R3.
It
was
the
result
of
extensive
consultations
between
government
and
the
scientific
community
both
in
industry
and
in
universities.
It
represents
a
broad
consensus
of
persons
in
the
public
and
private
sector
who
are
likely
to
be
affected
by
or
to
have
an
interest
in
the
interpretation
of
the
SRED
provisions
of
the
Income
Tax
Act.
The
process
demonstrates
the
sensitivity
of
the
government
to
the
concerns
of
the
scientific
and
business
communities
in
this
area.
Numerous
submissions
were
received
from
organizations.
Three
basic
criteria
were
considered
by
the
panels
who
were
involved
in
the
process:
scientific
or
technological
uncertainty,
scientific
or
technological
content
and
scientific
or
technological
advancement.
In
light
of
the
extensive
consultation
and
the
impressive
credentials
of
the
persons
who
participated
in
the
process,
the
document
that
emerged,
IC
86-4R3
is
a
generally
useful
and
reliable
guide.
Although
I
do
not
presume
to
have
the
technological
expertise
of
the
persons
who
assisted
in
the
preparation
of
the
circular,
or
the
witnesses
who
appeared
before
me,
including
the
highly
qualified
experts
who
appeared
on
behalf
of
the
appellant
and
the
respondent,
I
should
like
to
set
out
briefly
my
own
understanding
of
the
approach
to
be
taken:
1.
Is
there
a
technical
risk
or
uncertainty?
(a)
Implicit
in
the
term
“technological
risk
or
uncertainty”
in
this
context
is
the
requirement
that
it
be
a
type
of
uncertainty
that
cannot
be
removed
by
routine
engineering
or
standard
procedures.
I
am
not
talking
about
the
fact
that
whenever
a
problem
is
identified
there
may
be
some
doubt
concerning
the
way
in
which
it
will
be
solved.
If
the
resolution
of
the
problem
is
reasonably
predictable
using
standard
procedure
or
routine
engineering
there
is
no
technological
uncertainty
as
used
in
this
context.
(b)
What
is
“routine
engineering”?
It
is
this
question,
(as
well
as
that
relating
to
technological
advancement)
that
appears
to
have
divided
the
experts
more
than
any
other.
Briefly
it
describes
techniques,
procedures
and
data
that
are
generally
accessible
to
competent
professionals
in
the
field.
2.
Did
the
person
claiming
to
be
doing
SRED
formulate
hypotheses
specifically
aimed
at
reducing
or
eliminating
that
technological
uncertainty?
This
involves
a
five
stage
process:
(a)
the
observation
of
the
subject
matter
of
the
problem;
(b)
the
formulation
of
a
clear
objective;
(c)
the
identification
and
articulation
of
the
technological
uncertainty;
(d)
the
formulation
of
an
hypothesis
or
hypotheses
designed
to
reduce
or
eliminate
the
uncertainty;
(e)
the
methodical
and
systematic
testing
of
the
hypotheses.
It
is
important
to
recognize
that
although
a
technological
uncertainty
must
be
identified
at
the
outset
an
integral
part
of
SRED
is
the
identification
of
new
technological
uncertainties
as
the
research
progresses
and
the
use
of
the
scientific
method,
including
intuition,
creativity
and
sometimes
genius
in
uncovering,
recognizing
and
resolving
the
new
uncertainties.
3.
Did
the
procedures
adopted
accord
with
established
and
objective
principles
of
scientific
method,
characterized
by
trained
and
systematic
observation,
measurement
and
experiment,
and
the
formulation,
testing
and
modification
of
hypotheses?
(a)
It
is
important
to
recognize
that
although
the
above
methodology
describes
the
essential
aspects
of
SRED,
intuitive
creativity
and
even
genius
may
play
a
crucial
role
in
the
process
for
the
purposes
of
the
definition
of
SRED.
These
elements
must
however
operate
within
the
total
discipline
of
the
scientific
method.
(b)
What
may
appear
routine
and
obvious
after
the
event
may
not
have
been
before
the
work
was
undertaken.
What
distinguishes
routine
activity
from
the
methods
required
by
the
definition
of
SRED
in
section
2900
of
the
Regulations
is
not
solely
the
adherence
to
systematic
routines,
but
the
adoption
of
the
entire
scientific
method
described
above,
with
a
view
to
removing
a
technological
uncertainty
through
the
formulation
and
testing
of
innovative
and
untested
hypotheses.
4.
Did
the
process
result
in
a
technological
advance,
that
is
to
say
an
advancement
in
the
general
understanding?
(a)
By
general
I
mean
something
that
is
known
to,
or,
at
all
events,
available
to
persons
knowledgeable
in
the
field.
I
am
not
referring
to
a
piece
of
knowledge
that
may
be
known
to
someone
somewhere.
The
scientific
community
is
large,
and
publishes
in
many
languages.
A
technological
advance
in
Canada
does
not
cease
to
be
one
merely
because
there
is
a
theoretical
possibility
that
a
researcher
in,
say,
China,
may
have
made
the
same
advance
but
his
or
her
work
is
not
generally
known.
(b)
The
rejection
after
testing
of
an
hypothesis
is
nonetheless
an
advance
in
that
it
eliminates
one
hitherto
untested
hypothesis.
Much
scientific
research
involves
doing
just
that.
The
fact
that
the
initial
objective
is
not
achieved
invalidates
neither
the
hypothesis
formed
nor
the
methods
used.
On
the
contrary
it
is
possible
that
the
very
failure
reinforces
the
measure
of
the
technological
uncertainty.
5.
Although
the
Income
Tax
Act
and
the
Regulations
do
not
say
so
explicitly,
it
seems
self-evident
that
a
detailed
record
of
the
hypotheses,
tests
and
results
be
kept,
and
that
it
be
kept
as
the
work
progresses.
The
Belleville
(Lock
&
Dam)
Hydroelectric
Project
This
project
was
owned
and
operated
by
the
U.S.
Corps
of
Engineers.
It
is
located
on
the
Ohio
River
at
Belleville,
West
Virginia.
The
river
was
primarily
used
for
navigation.
A
private
developer
proposed
the
construction
of
a
hydroelectric
powerhouse
on
the
opposite
bank
of
the
river.
The
appellant
was
retained
to
evaluate
the
initial
design
and,
if
necessary,
to
develop
design
modifications
to
improve
the
performance.
The
objective
was
to
develop
a
design
that
would
permit
the
powerhouse
to
be
constructed
and
operate
in
a
manner
that
would
not
interfere
with
navigation.
The
technological
problem
and
the
hypotheses
formulated
to
solve
the
problem
are
set
out
in
the
draft
report
prepared
by
the
appellant
(Exhibit
A-
1).
The
objectives
of
the
study
were
as
follows
(pages
4-5):
1.3
Study
Objectives
Three
test
series
were
performed
using
the
1:120
scale
navigation
model.
The
first
series
of
tests
addressed
ACOE
concerns
regarding
the
effect
of
the
proposed
powerhouse
addition
both
during
and
after
construction
on
existing
navigation,
sedimentation,
stage,
erosion,
and
surge.
The
second
series
of
tests
used
upstream
and
downstream
flow
patterns
to
develop
a
hydraulically-efficient
and
cost-effective
design
of
the
civil
works.
The
third
series
of
tests
collected
additional
velocity
data
to
help
layout
an
appropriate
recreational
facility
downstream
of
the
powerhouse.
The
test
program
for
the
1:30
scale
section
model
documented
the
hydraulic
performance
of
the
approach
channel
to
the
proposed
powerhouse.
Details
of
the
1:30
scale
model
test
program
can
be
found
in
the
separate
“Powerhouse
Performance”
report.
Specific
ACOE
objectives
included
the
following:
e
Establish
baseline
performance
of
the
existing
configuration
including
navigation
conditions,
water
surface
profiles,
and
sediment
transport
characteristics
in
the
vicinity
of
the
lower
lock
approach.
Also,
document
velocities
over
the
entire
modelled
reach
of
the
river,
in
the
lock
approaches,
near
the
affected
structures
and
adjacent
bank
lines
(navigation
model).
•
Ensure
that
the
proposed
hydropower
project,
under
steady-state
operation,
does
not
have
an
adverse
impact
on
either
the
navigation
conditions
or
the
bank
line
velocities.
Develop
modifications
required
to
eliminate
any
unsatisfactory
conditions
during
and
after
construction
(navigation
model).
•
Assess
the
backwater
effects
of
the
project
modifications,
both
during
and
after
construction,
and
develop
designs
to
eliminate
any
unsatisfactory
conditions
(navigation
model).
•
Investigate
the
magnitude
of
upstream
and
downstream
surges
(water
levels
and
velocities)
resulting
from
powerhouse
start-up
and
shut-down
(navigation
model).
°
Determine
the
effect
of
any
site
excavation
or
soil
disposal
on
the
upstream
flood
stages
and
flow
distribution,
and
investigate
designs
required
to
eliminate
unsatisfactory
conditions
(navigation
model).
•
Provide
a
qualitative
assessment
of
the
movement
of
sediment
into
the
lower
lock
approach
for
the
proposed
powerhouse
conditions
and
compare
with
the
baseline
conditions.
Develop
design
modifications
to
eliminate
adverse
conditions
as
required
(navigation
model).
•
Ensure
that
the
flow
over
and
around
the
powerhouse
does
not
induce
erosion
or
threaten
the
integrity
of
the
existing
dam
(navigation
and
section
models).
•
Assess
the
environmental
aspects
of
the
project.
In
particular,
the
velocities
and
flow
patterns
produced
by
powerhouse
flows
in
the
downstream
river
channel
(navigation
and
section
models).
In
addition
to
the
concerns
of
the
ACOE,
the
model
study
was
also
used
to:
•
Aid
in
the
layout
of
the
recreational
facilities
downstream
of
the
proposed
powerhouse
with
input
from
the
appropriate
resource
agencies
(navigation
model).
•
Evaluate
the
hydraulic
performance
of
alternative
approach
channel
configurations
designed
to
minimize
unsymmetrical
flow
conditions
that
would
adversely
affect
plant
efficiency
(navigation
and
section
models).
•
Evaluate
the
hydraulic
performance
of
alternative
tailrace
channel
geometries
with
emphasis
on
minimizing
head
losses
and
draft
tube
instabilities
(navigation
and
section
models).
Does
the
passage
quoted
above
demonstrate
a
degree
of
technological
uncertainty
that
cannot
be
resolved
by
routine
engineering?
The
overall
purpose
was
to
evaluate
the
initial
design
and
develop
modifications
that
would
ensure
that
the
hydroelectric
project
would
not
have
an
adverse
impact
on
navigation
on
the
river,
on
upstream
water
levels
and
would
not
increase
the
flow
of
sediment
downstream
from
the
dam.
An
additional
problem
was
the
distribution
of
flow
velocities
entering
the
powerhouse.
I
am
satisfied
that
there
was
a
high
degree
of
technological
risk.
I
am
not
basing
this
conclusion
on
the
somewhat
self-evident
observation
that
the
fact
that
the
U.S.
Corps
of
Engineers
retained
the
appellant
to
do
the
physical
study
in
itself
is
illustrative
of
a
high
degree
of
technological
risk.
The
making
of
a
physical
model
for
projects
of
this
type
may
be
a
standard
requirement
of
the
U.S.
Corps
of
Engineers.
However,
even
if
it
is
standard
procedure
for
them,
the
very
existence
of
the
policy
probably
demonstrates
that
a
measure
of
technological
risk
is
inherent
in
all
projects
of
this
type.
This
may
be
implicitly
recognized
in
paragraph
7.5
of
IC
86-4R3
where
it
is
said:
7.5
In
regulated
industries
where
specifications
for
product
performance,
registration,
certification,
and/or
safety
are
enforced
or
are
generally
accepted,
studies
required
to
meet
these
requirements
or
standards
are
eligible
activities.
I
prefer
however
to
base
my
conclusion
on
the
number
of
uncertainties
inherent
in
the
change
to
the
flow
pattern
that
the
construction
of
the
hydroelectric
project
would
entail
and
the
velocity
of
the
flow
to
the
power
plant
resulting
from
its
construction
deep
into
the
bank
opposite
the
locks.
Based
on
the
evidence
of
Mr.
Hughes,
the
engineer
in
charge
of
the
project
of
the
appellant
I
do
not
think
that
conventional
engineering
would
be
adequate
to
deal
with
the
variables
and
the
uncertainties
that
were
inherent
in
the
major
disruption
and
diversion
of
the
flow
of
the
river
resulting
from
the
construction.
Two
models
were
required.
One
problem
that
emerged
was
the
flow
pattern
that
would
have
resulted
from
the
initial
design
would
have
adversely
affected
the
navigation
downstream.
As
a
result
the
tailrace
channel
was
realigned
to
obviate
the
problem
with
the
initial
design
and
the
approach
channel
was
realigned.
It
would
be
easy
to
say,
after
the
event,
that
these
solutions
are
obvious
and
routine.
They
are
not.
They
required
a
number
of
methodical
and
systematic
experiments
and
progressive
modifications
to
meet
problems
that
could
not
have
been
predicted.
In
my
view,
this
project
meets
all
of
the
criteria
set
out
in
Regulation
2900,
IC
86-4R3
and
the
criteria
set
out
above.
The
result
was
a
technological
advance
with
respect
to
this
particular
problem
of
hydraulic
engineering,
involving,
as
it
did,
the
juxtaposition
of
a
lock
and
dam
on
a
navigable
river
and
a
hydroelectric
power
plant.
It
is,
I
think,
unduly
simplistic
to
say
that
the
appellant
was
merely
applying
technology
that
it
had
learned
from
working
on
similar
projects.
Each
river
is
different
and
each
project
of
this
sort
adds
to
the
body
of
knowledge.
I
will
simply
conclude
my
discussion
of
this
project
by
quoting
from
the
evidence
of
Mr.
Hughes:
Q.
Was
there
any
new
knowledge
that
the
staff
of
NHC
gained
as
a
result
of
this
—
working
on
this
particular
project?
A.
With
this,
and
pretty
much
every
project,
we
learn
something.
Some
of
the
earlier
lock
and
dam
projects,
for
instance,
we
had
used
a
different
type
of
feature
to
help
spread
this
flow.
I
this
case
we
developed
a
feature
in
this
direction
which
we
hadn’t
used
in
previous
ones.
In
our
early
part
of
our
development
testing
we
tried
to
take
that
knowledge
from
our
previous
projects
and
apply
it
here.
It
didn’t
prove
as
beneficial
as
:t
did
in
the
previous
cases,
so
we
had
to
develop
some
other
modifications.
In
this
case,
for
example,
this
feature
here
was
able
to
meet
the
objectives.
The
Schuylkill
River
Sedimentation
Study
This
study
was
conducted
by
the
appellant
for
the
City
of
Philadelphia.
The
problem
was
that
the
Schuylkill
River,
which
flowed
in
front
of
Boathouse
Row,
a
rowing
club,
was
depositing
sediment
in
front
of
the
club.
As
the
river
flowed
around
a
bend
immediately
upstream
from
the
club
the
surface
water
flowed
fairly
uniformly,
following
the
contours
of
the
righthand
bank
of
the
river
and
over
a
dam
downstream
on
the
right.
The
water
near
the
bed
of
the
river
went
into
a
helical
flow
and
veered
off
to
the
left
toward
the
rowing
club,
which
was
situate
on
the
bank
of
a
river
in
an
indentation
or
recess
in
the
left
bank
that
could
be
described
as
a
bay
or
perhaps
more
accurately
as
a
cove.
The
water
in
the
cove
is
virtually
still.
The
below
surface
water
in
the
current
of
the
river
that
goes
into
a
helical
flow
after
coming
around
the
bend
moves
much
more
slowly
with
the
result
that
suspended
sediment
that
was
carried
along
so
long
as
the
river
was
moving
rapidly,
drops
down
to
the
bed
from
the
slower
helical
flow
of
the
below
surface
water
and
is
deposited
in
front
of
the
club,
making
access
difficult
or
impossible.
The
particular
characteristic
of
the
flow
of
current
around
a
bend
in
a
river,
the
formation
of
a
helix
and
the
differing
velocities
of
the
surface
and
below
surface
water
were
well
known
in
the
profession.
The
problem
was
to
devise
a
solution
that
would
eliminate
the
deposit
of
sediment
in
front
of
the
club.
It
was
decided
that
the
best
way
of
doing
so
was
the
construction
of
a
physical
model.
One
obvious
solution
was
dredging.
This
was
considered
expensive
and
impermanent.
Others
were
the
construction
of
river
training
walls
-
spurs
or
rock
fills
off
the
shore
-
to
intercept
the
flow
pattern
or
the
construction
of
a
river
dividing
wall
parallel
to
the
bank
to
create
scour
and
prevent
sediment
from
reaching
the
area.
The
river
training
walls
were
rejected
because
of
the
degree
of
the
bend
and
velocity
of
the
current.
Such
structures
would
have
had
to
be
excessively
large.
The
creation
of
a
division
in
the
river
by
means
of
a
parallel
wall
was
the
most
promising
idea.
It
fell
into
three
alternatives:
(a)
The
flushing
concept
which
involved
a
parallel
dividing
wall
which
would
increase
the
velocity.
(b)
The
deadpond
concept,
which
involved
the
building
of
a
long
wall
that
would
in
effect
isolate
the
area
in
front
of
the
club.
This
was
rejected
for
both
safety
and
aesthetic
reasons.
A
large
wall
in
the
middle
of
a
river
in
front
of
a
rowing
club
is
unattractive.
(c)
The
extended
peninsula.
Essentially
this
involved
the
extension
of
the
existing
peninsula
which
combined
the
features
-
and
results
-
of
the
other
two
ideas
-
the
isolation
of
the
area
and
the
counteracting
of
the
helical
effect
by
a
redirection
of
the
main
flow
and
the
increase
of
the
velocity.
I
do
not
think
this
project
meets
the
criteria
of
SRED.
There
was
no
doubt
a
measure
of
uncertainty
as
to
the
best
method
of
dealing
with
the
problem
and
there
was
also
methodical
experimentation.
However
the
solutions
that
were
tested
and
the
one
that
was
ultimately
adopted
were
well
within
accepted
engineering
techniques.
I
do
not
mean
to
belittle
the
engineering
skill
that
was
utilized
in
finding
an
answer
to
the
problem
but
there
was
nothing
particularly
innovative.
It
could
not
have
failed
to
be
obvious
that
sooner
or
later,
using
established
techniques,
a
solution
would
be
found.
The
East
Rapti
Irrigation
Project
The
East
Rapti
River
is
in
Nepal.
The
objective
was
to
develop
the
hydraulic
design
of
a
diversion
dam
and
intake
required
for
irrigation
water
supply.
This
in
my
view
was
an
extremely
challenging
project.
The
river
is
1,800
metres
wide
and
carries
large
amounts
of
sediment.
The
channel
is
“braided”,
that
is
to
say
it
consists
of
a
number
of
channels.
The
bank
of
the
river
in
subject
to
erosion
and
is
highly
unstable.
Moreover,
the
slope
is
steep
giving
rise
to
unusually
high
velocity.
The
problems
were
to
maintain
a
low
flow
channel
near
the
intake
during
the
dry
season,
to
exclude
sediment
from
entering
the
intake
and
reduce
downstream
scouring
(erosion
of
materials
due
to
high
velocity).
In
the
result
three
models
were
required:
(a)
A
model
of
the
river;
this
required
a
distortion
of
the
scale;
(b)
an
intake
model;
and
(c)
a
settling
basin
model.
For
this
purpose
it
was
necessary
to
develop
geometry
for
upstream
training
dikes
and
spurs,
and
an
alignment
for
the
intake
structure.
The
capacity
of
the
sluice
gate
had
to
be
increased
and
a
flow
divide
wall
had
to
be
added.
A
downstream
scour
protection
scheme
had
to
be
devised
and
a
settling
basin
had
to
be
modified
to
improve
flushing.
Of
all
of
the
projects
described
it
appears
to
me
that
this
was
the
one
that
at
the
outset
had
the
greatest
degree
of
technological
uncertainty.
Each
characteristic
taken
alone
and
in
isolation
would
unquestionably
have
presented
difficulties.
Cumulatively
they
magnified
each
other.
It
seems
clear
that
the
problems
encountered
could
not
have
been
resolved
by
standard
or
routine
engineering.
The
final
report
demonstrates
the
numerous
tests
that
were
performed.
In
the
result
the
project
did
not
achieve
the
objectives
sought.
I
set
out
the
conclusions
enumerated
in
the
final
report.
It
will
be
obvious
that
the
testing
was
a
mixed
success.
Many
of
the
hypotheses
tested
were
rejected.
What
this
illustrates
is
the
point
made
earlier
that
technological
advancement
does
not
necessarily
imply
success:
10.
Conclusions
The
conclusions
resulting
from
the
series
of
tests
conducted
on
the
East
Rapti
models
consist
of
the
following:
Baseline
tests
•
The
baseline
tests
conducted
before
installation
of
the
weir
showed
good
simulation
of
a
braided
river.
•
The
high
flow
rates
eroded
the
incised
narrow
channel
system
generated
by
low
flows.
Upstream
Training
Works
•
Tests
with
the
weir
indicated
that
upstream
left-side
training
works
are
needed
to
protect
the
guidebank
immediately
upstream
from
the
weir
from
erosive
attack,
prevent
erosion
of
the
left
bank
(Chitwan
Park),
and
to
direct
approach
flow
to
the
intake.
•
An
upstream
training
scheme
consisting
of
three
open
dyke
elements
plus
T-spur
dykes
both
upstream
and
downstream
from
the
open
dyke
sections
was
developed.
The
training
scheme
provided
the
required
protection,
helped
direct
low
flows
to
the
intake,
and
allowed
the
area
behind
the
dyke
to
the
preserved
as
wetlands.
This
system
performed
well,
but
the
three
spur
configuration
was
also
adequate.
The
final
layout
will
be
the
decision
of
the
project
designers.
A
minimum
of
two
spurs
is
recommended,
if
limited
funding
does
not
permit
construction
of
the
tested
schemes.
Low-Flow
Channel
•
Bars
built
up
in
the
400
m
wide
approach
channel
during
floods
that
isolated
the
intake
during
low
flows.
A
series
of
tests
was
conducted
using
submerged
inner
guide
banks
to
create
a
low
flow
channel.
A
1
m
high
guidebank
forming
a
channel
‘4
the
width
of
the
weir
achieved
acceptable
results.
Because
the
inner
guide
bank
scheme
concentrates
flow
and
causes
higher
upstream
water
levels,
a
scheme
using
floodway
gates
was
adopted
for
further
study.
•
A
modified
design
using
two
20
m
wide
gated
floodways
and
one
20
m
undersluice
was
effective
in
producing
a
low
flow
channel
to
the
intake.
This
was
accomplished
primarily
with
open
floodway
gates
and
a
closed
undersluice.
•
A
larger
radius
right-side
guidewall
improve
flow
conditions
when
flow
is
guided
by
the
right
guidewall.
Downstream
Degradation
•
Extended
tests
with
the
weir
indicated
that
degradation
downstream
from
the
weir
will
occur
during
the
early
years
of
the
project
when
bedload
transported
by
the
Rapti
river
is
trapped
behind
the
weir,
and
sediment-free
flow
passes
downstream.
This
degradation
resulted
in
water
surface
elevations
lowered
by
approximately
1.5
m.
Upstream
Aggradation
and
Water
Levels
°
Aggradation
occurring
upstream
from
the
weir
was
exaggerated
in
the
model
with
the
result
that
water
elevations
measured
far
upstream
from
the
weir
are
conservatively
high.
Water
elevations
measured
upstream
near
the
weir
agree
closely
with
levels
computed
with
the
assumption
that
their
weir
functions
hydraulically
as
a
broad-crested
weir.
The
difference
between
computed
and
measured
elevations
1,800
m
upstream
from
the
weir
for
2,250
m
/s
was
1.7
m.
Velocities
near
Dykes
•
Velocities
measured
near
the
downstream
end
of
the
downstream
T-
spur
dyke
were
as
high
as
6.9
m/s
for
6,000
m
/s,
and
near
the
downstream
end
of
the
existing
dyke
downstream
from
the
weir
as
high
as
7.7
m/s.
Protection
will
be
required
against
these
high
velocities.
Performance
of
Canal
Intake
•
Tests
with
canal
intakes
oriented
at
140
and
90
degrees
indicated
more
uniform
flow
distribution
with
the
90
degree
intake,
although
both
intakes
had
more
flow
enter
through
the
left
side
of
the
intake.
The
90
degree
intake
was
adopted
for
final
design.
•
Although
both
orientations
were
studied
for
bedload
deposition,
only
the
results
of
the
90
degree
intake
will
be
discussed
herein.
Flow
conditions
with
the
floodway
and
undersluice
gates
open
0.5
m
resulted
in
considerable
bedload
entering
the
canal
headworks
area.
Flows
with
the
floodway
gates
open
1
m
and
the
undersluice
closed
also
resulted
in
considerable
deposition
in
the
headworks
area.
•
The
addition
of
a
40
m
long
divide
wall
that
extended
above
the
water
surface
effectively
prevented
bedload
from
entering
the
canal
headworks
area
when
tested
for
the
1
m
floodway
gate
opening
with
the
undersluice
closed.
When
canal
flow
is
also
eliminated,
prevention
of
bedload
entering
the
headworks
area
is
further
enhanced.
•
Flushing
tests
conducted
with
a
wide
open
undersluice
indicated
that
flushing
with
the
divide
wall
is
much
more
effective
than
without
the
wall.
Log
Passage
•
Log
passage
tests
were
conducted
with
the
premise
that
log
accumulation
in
the
pocket
area
upstream
from
the
undersluice
should
be
minimized.
This
was
accomplished
to
a
large
extent
by
closing
the
underslu-
ice
but
operating
the
floodway.
This
operation
resulted
in
log
accumulation
upstream
from
the
floodway,
but
minimal
accumulation
in
the
pocket.
•
Logs
of
20
m
size
were
capable
of
being
flushed
by
completely
opening
the
gates
(floodway
or
undersluice).
Larger
logs
of
30
m
size
frequently
became
jammed.
•
Several
log
diversion
walls
were
tested
to
explore
the
potential
for
improving
the
effectiveness
of
diverting
logs
into
the
floodway.
The
best
scheme
involved
a
solid
skimmer
wall
that
allowed
flow
to
pass
underneath
the
wall
and
the
logs
were
re-directed
away
from
the
pocket
area.
•
The
elimination
of
all
canal
flow
combined
with
no
undersluice
flow
resulted
in
more
favourable
conditions
for
diverting
logs
from
the
pocket.
Crest
•
The
crest
shape
for
the
weir
produces
smooth
flow
conditions.
Tests
with
a
simplified
crest
for
the
gated
sections
showed
flow
separation
for
the
higher
flows
with
some
accompanying
instability.
This
was
eliminated
for
the
undersluice
with
a
change
to
a
curved
shape.
Stilling
Basins
Downstream
of
Weir
•
Four
stilling
basin
designs
were
tested
downstream
of
the
weir:
Types
3
and
4
at
basin
elevations
of
224.7
and
226.7
m.
The
two
higher
basins
produced
downstream
water
levels
that
were
much
higher
than
the
tailwater
level.
This
caused
scouring
conditions
downstream
as
high
velocities
were
generated
by
the
drop
in
water
level.
The
Type
3
basin
at
224.7
m
elevation
was
adopted
for
final
design.
•
The
adopted
basin
was
tested
with
and
without
stone
accumulation
in
the
stilling
basin.
The
presence
of
stones
caused
some
additional
mounding
of
the
water
above
the
floor
blocks
for
the
higher
flows
and
an
exaggerated
vertical
eddy
that
tended
to
rotate
stones
back
to
the
face
of
the
spillway,
where
they
may
accelerate
erosion
of
the
concrete.
Many
of
these
stones,
however,
will
wash
out
at
the
higher
flows.
Stilling
Basins
and
Launching
Aprons
Downstream
of
Gates
•
Stilling
basins
and
launching
aprons
were
tested
downstream
from
the
gated
sections.
The
launching
aprons
were
tested
in
both
level
and
sloping
positions.
Velocities
and
water
levels
were
measured.
The
sloping
launching
apron
reduces
or
eliminates
the
drop
in
water
from
the
apron
to
the
river,
particularly
for
degraded
conditions.
A
launching
apron
design
is
proposed
for
final
design.
Settling
Basin
•
Approach
flow
patterns
to
the
settling
basin
appear
satisfactory
as
the
upstream
transition
adequately
spreads
the
flow
so
that
all
basin
segments
are
used
effectively.
There
is
slower
moving
flow
along
the
di-
verging
sidewall
that
would
be
improved
by
rounding
the
upstream
corner
of
the
transition.
Deposition
in
the
basin
was
fairly
well
distributed
among
the
basin
segments.
•
Flushing
with
the
four-channel
scheme
was
unsuccessful
because
insufficient
downstream
channel
capacity
resulted
in
subcritical
flow
through
much
of
the
downstream
section
of
the
basin.
This
scheme
would
function
adequately
if
more
downstream
capacity
were
provided.
•
Flushing
with
the
single-channel
scheme
with
the
slope
through
the
flushing
ports
continuing
at
the
1:100
basin
slope
was
not
satisfactory
as
a
hydraulic
jump
formed
in
the
basin.
Elevation
drops
of
20,
30
and
45
cm
through
the
ports
were
then
tested.
Supercritical
flow
through
the
ports,
and
thus
effective
flushing,
was
maintained
for
flow
rates
from
2
to
6
m
/s
for
the
three
tested
drops.
Sediment
Ejector
•
Tests
with
the
sediment
ejector
indicated
effective
removal
of
bed
sediments
for
6
and
8
m
/s.
The
location
and
size
of
the
ejector
may
require
further
consideration,
as
they
do
not
conform
to
published
recommendations.
It
may
be
more
efficient
if
it
is
located
with
a
long
straight
upstream
reach
to
allow
for
uniform
flow
to
be
attained.
The
recommendations
suggest
that
ejected
flow
be
limited
to
approximately
25
percent
of
the
canal
flow
rate.
The
advance
that
was
made
was
summarized
by
Dr.
Babb:
Q.
As
a
result
of
this
project,
were
there
any
innovations
or
any
improvements
that
you
became
aware
of
in
hydraulic
engineering?
A.
Well,
this
concept
of
a
divide
wall
is
not
new,
but
this
is
an
entirely
different
application
in
that
it’s
a
highly
braided
river
and
so
I
think
the
development
there,
the
shape
of
the
intake
works,
the
alignment
and
the
length
and
the
height
of
the
wall
in
combination
with
the
gates
that
were
used.
Also
the
development
of
methods
for
maintaining
this
low-flow
channel
for
the
intake
in
this
highly
sediment
laden
river,
that’s
an
advance.
Q.
You
talked
about
the
piers
or
those,
I
think
of
them
as
vanes,
for
the
intakes.
A.
Yes.
Q.
I
guess
that’s
this
photograph
here,
Your
Honour.
How
were
they
positioned?
Is
there
any
hydrotechnical
theory
on
the
positioning
of
these
vanes?
A.
Well,
there
is.
And
just
because
flow
doesn’t
like
to
turn
a
corner,
and
so
if
you
don’t
have
any
vanes
in
there
to
help
it,
then
probably
half
of
your
-
maybe
only
a
half
of
your
intake
area
will
be
affected.
In
other
words,
the
flow
moving
downstream
only
occupies
maybe
half
of
that
opening.
Whereas
if
you
break
it
up
into
smaller
channels
and
the
nose
of
that
vane
is
up
where
the
incoming
flow
can
intercept
it,
then
in
effect
we’ve
got
a
lot
of
little
channels,
what
may
be
this
separated
zone
within
each
channel.
But
overall
it’s
a
much
more
effective
way
and
distributed
over
the
width
of
the
intake.
Q.
Could
these
designs
have
been
implemented
by
resorting
merely
to
textbooks?
A.
No,
you
wouldn’t
find
any
of
that
in
a
textbook.
But
there
are
design
guides
available
and
certainly
there
are
suggestions
there
and
these
were
used
in
the
initial
design.
But
not
enough
is
available
there
to,
I
think,
develop
an
effective
design
of
this
type.
Q.
You
mention
“design
guides”.
What
is
a
design
guide?
A.
Well,
it’s
something
like
a
book
or
a
manual
that
has
maybe
some
number
of
case
studies
that
could
be
used,
some
basic
theory
in
it
and
maybe
some
design
examples.
And
if
it
fits
your
particular
application
and
it’s
been
either
model
tested
before
or
built
in
the
field
where
you
can
see
how
it
operates,
and
if
you
build
exactly
the
same
structure,
there’s
no
need
for
a
model.
But
if
you’re
doing
things
differently
or
its
in
a
different
environment,
then
the
model
is
necessary.
Q.
The
sedimentation
basin,
you
indicated
that
design
was
provided
to
you
by
the
Japanese
firm?
A.
Yeah,
they
had
a
standard
sedimentation
basin
design,
so
we
adopted
that.
Q.
Did
you
know
before
it
was
put
in
the
model
whether
or
not
it
would
work?
A.
No,
I
didn’t.
Q.
What
did
you
anticipate?
A.
I
anticipated
when
the
gates
were
open
that
the
water
level
would
drop
and
all
the
sediment
would
go
back
to
the
river.
Q.
And
in
fact
that
didn’t
happen,
did
it?
A.
No.
Q.
It
failed
in
this
project.
Is
that
right?
A.
Well,
it
wasn’t
built
that
way,
it
was
just
built
in
the
model
and
it
didn’t
function.
Q.
That’s
what
I
mean.
A.
Yes,
right.
Q.
The
model
of
the
design
failed
for
its
purpose?
A.
Right.
In
my
view,
the
East
Rapti
River
Irrigation
Project
meets
all
of
the
criteria
of
SRED.
The
myriad
of
technological
uncertainties
are
obvious.
It
is
clear
that
these
uncertainties
could
not
be
removed
by
routine
engineering.
Indeed
even
with
the
appellant’s
highly
developed
skills
in
this
area
a
number
of
the
problems
could
not
be
resolved.
The
methodical
testing
of
hypotheses
is
apparent
from
the
detailed
reports
submitted.
The
technological
advances
were
discussed
by
Dr.
Babb
both
in
his
viva
voce
testimony
and
the
conclusions
which
are
reproduced
above.
I
have
not
reproduced
any
passages
from
Exhibit
R-7,
relating
to
the
hydraulic
design
and
specifica-
tions
for
hydraulic
model
tests
for
head
work.
It
does
however
underline,
in
the
list
of
objectives,
even
more
than
the
final
report
and
the
evidence
of
Dr.
Babb,
the
high
degree
of
risk
and
uncertainty
inherent
in
the
project.
This
project
clearly
qualifies
as
SRED.
The
Walters
Dam
Apron
Repair
On
this
case
the
appellant
was
retained
by
Carolina
Power
&
Light
Company.
The
Walters
Dam
is
an
arched
dam
with
14
gated
bays.
Water
passes
over
a
short
crest
section
at
the
top
through
the
gates
and
plunges
180
feet
into
a
concrete
basin.
During
periods
of
flooding
when
large
volumes
of
water
pass
over
the
dam,
the
concrete
apron
on
which
it
falls
is
damaged.
The
dam
was
built
in
1930
and
the
damage
from
the
falling
water
was
repaired
in
1972
and
1990.
Dr.
Babb
and
Hank
Falvey
of
NHC
visited
the
dam
on
December
6,
1990
and
wrote
to
Carolina
Power
&
Light
Company
on
January
15,
1991
and
set
out
the
problem:
Analysis
of
Failure
The
attached
trip
report
describes
the
following
damage-producing
processes:
•
High
pressure
created
by
the
impact
of
the
water
falling
180
ft
on
the
concrete
apron
finds
a
path
to
the
underside
of
the
apron
through
both
open
grout
pipes
and
construction
joints.
•
The
original
uplift
has
a
perimeter
bounded
by
a
large
crack,
having
an
approximate
diameter
of
40
ft,
and
occurred
as
a
result
of
excessive
shear
stresses.
•
The
crack
was
produced
by
vertical
uplift
forces
that
exceeded
the
combined
tensile
strength
of
the
concrete,
the
weight
of
the
concrete
slab,
and
the
impact
force
of
the
water.
•
The
uplift
either
delaminated
the
apron
from
the
foundation,
or
of
the
newer,
upper
apron
slab
from
the
original
lower
apron.
This
resulted
in
uplift
of
the
slabs
at
the
downstream
end
of
the
apron
with
the
uplift
force
transmitted
from
one
slab
to
the
next
through
the
steel
reinforcing
bars.
•
The
average
pressure
required
to
generate
this
uplift
is
estimated
to
be
slightly
more
than
half
the
reservoir
pressure.
On
January
25,
1991,
the
client
wrote
to
NHC
setting
out
the
objectives
of
the
model
study:
In
response
to
your
letter
dated
January
15,
1991,
we
are
writing
to
finalize
the
objectives
for
the
model
study.
Our
primary
objectives
for
the
model
study
are
as
follows:
1.
Reproduce
the
conditions
that
led
to
the
apron
damage.
2.
Determine
the
maximum
uplift
pressures.
3.
Determine
the
water
flow
and/or
gate
opening
combination
which
results
in
the
maximum
uplift
pressure
4.
Document
if
the
maximum
uplift
is
a
transitory
phenomenon
A
secondary
objective
for
the
study
would
be
to
document
the
effect
of
a
plunge
pool.
While
this
is
a
potential
approach
to
reduce
the
uplift
on
the
apron
slab,
the
design
and
construction
of
a
downstream
weir
is
probably
not
justifiable
when
compared
to
an
anchored
slab.
A
model
on
a
scale
of
1:40
was
constructed.
The
first
solution
considered
was
to
construct
radial
divide
walls,
the
purpose
and
effect
of
which
was
to
simulate
the
effect
of
opening
all
of
the
gates
at
once
in
that
it
deflected
the
falling
jet
of
water.
The
second
solution
was
simply
to
change
the
sequence
of
the
gates,
or
pass
the
water
through
more
gates.
Essentially
the
purpose
of
this
solution
was
to
dissipate
the
water
falling
on
the
concrete.
Other
solutions
involved
the
reshaping
of
the
apron
and
the
sealing
of
apron
joints.
The
idea
of
repairing
the
apron
in
itself
is
hardly
innovative.
Repairs
are
an
inevitable
concomitant
of
damage.
The
solution
suggested
went
beyond
mere
repair.
It
involved
not
merely
the
construction
of
four
foot
layers
of
concrete,
but
rather
a
large
mass
of
concrete
which
pressures
from
below
could
not
move.
There
was
clearly
a
technological
uncertainty
that
conventional
engineering
could
not
remove.
Imaginative
and
innovative
hypotheses
were
tested
methodically
and
a
technological
advance
was
made
in
understanding
the
effect
of
the
falling
jet,
and
the
spreading
of
flow
through
the
change
in
the
sequence
of
opening
the
gates
as
well
as
through
the
divide
wall
system.
The
technological
advance
was
not
spectacular
but,
as
observed
above,
what
may
seem
routine
in
hindsight
involved
innovative
hypotheses
as
well
as
considerable
experimentation.
I
think
this
project
qualifies
as
SRED,
although
it
is
not
one
of
the
more
obvious
cases.
The
White
River
Diversion
Dam
This
project
in
my
view
ranks
with
or
just
below
the
Rapti
River
project
in
terms
of
technological
uncertainty
and
difficulty.
The
White
River
Diversion
Dam
was
constructed
in
1910.
It
is
owned
by
the
Puget
Sound
Power
and
Light
Co.
NHC
was
retained
by
a
firm
of
engineers,
HDR
Engineering
Inc.
of
Bellevue,
Washington.
The
purpose
of
the
dam
is
to
divert
the
river
to
an
intake
that
leads
to
a
power
canal
for
the
purpose
of
generating
hydro
electric
power.
Dr.
Babb
put
the
purpose
as
follows:
À.
Primarily
keeping
the
bed
material,
again
the
sands
and
the
gravels
out
of
the
intake,
and
also
the
establishment
of
favourable
fish
attraction
currents
to
these
entrances.
Q.
What
were
the
development
phases
that
you
undertook
in
proceeding
along
this
project?
A.
In
the
initial
design,
it
was
primarily
done
by
HDR.
He
had
input
to
the
initial
design
that
was
tested
in
the
model.
Once
the
model
was
considered
necessary,
then
the
stages
there
were
to
essentially
check
the
model
to
see
that
it
reproduced
the
observed
conditions
in
this
already-built
structure.
The
second
was
to
test
the
initial
design.
Thirdly
was
to
-
if
the
design
didn’t
perform
its
desired
objectives,
was
to
develop
that
design,
and
fourthly
was
to
document
the
adopted
final
design
over
a
series
of
different
flow
conditions,
which
involved
also
establishing
a
certain
gate
opening
sequence.
It
should
be
noted
that
the
appellant
was
retained
by
HDR
Engineering
Inc.
which
is
itself
a
large
engineering
firm
whose
expertise
included
hydraulic
engineering.
In
Exhibit
A-12,
there
are
set
out
a
number
of
alternatives
considered
by
the
appellant
for
the
physical
models.
That
exhibit
describes
the
operational
problems
that
the
project
was
intended
to
correct.
Operational
Problems
The
operational
problems
that
are
to
be
corrected
by
the
project
can
be
summarized
as
follows:
•
Water
level
control
upstream
of
the
diversion
dam
over
a
full
range
of
discharges.
The
existing
dam
is
a
timber
crib
structure
with
7-foot
high
flashboards
that
maintain
water
levels
during
normal
flows
but
can
be
removed
or
will
wash
out
at
high
flows.
These
are
to
be
replaced
by
operational
gates
of
some
kind.
•
The
slide
gates
in
the
intake
structure
are
old
and
need
refurbishment
or
replacement
as
necessary
to
support
overall
design.
•
The
river
transports
a
significant
bedload
of
sand,
gravel
and
cobbles
that
collects
upstream
of
the
diversion
dam
and
enters
and
deposits
in
the
intake
and
interferes
with
the
operation
of
the
intake
gates
and
obstructs
the
flow.
According
to
samples
taken
from
the
bed
below
any
armouring,
this
material
is
composed
of
about
75%
gravel,
20%
sand
and
5%
fines.
The
median
size
of
the
gravel
fraction
is
about
80
mm.
The
largest
size
sampled
is
about
100
mm.
•
The
river
also
transports,
in
suspension,
a
large
quantity
of
sand
that
is
transported
through
the
intake
along
with
the
flow
going
to
the
Lake
Tapps
storage
reservoir.
This
sand
is
deposited
in
intermediary
basins
and
is
removed
periodically.
•
The
river
transports
significant
quantities
of
floating
debris
that
collects
in
front
of,
or
enters,
the
intake
and
disrupts
operations.
•
The
existing
dikes
that
protect
development
along
the
right
bank
of
the
river
from
flooding
during
high
flows,
need
to
be
raised
and
upgraded
and
protected
from
erosion
by
floods,
•
There
are
fish
facilities
at
the
diversion
dam
on
both
banks
which
must
continue
to
operate
successfully
with
the
new
design.
These
include
fish
trap
facility
on
the
left
bank
operated
by
the
Corps
of
Engineers
to
collect
upstream
migrants
and
transport
them
above
Mud
Mountain
Dam
and
a
fish
hatchery
on
the
right
bank
operated
by
the
Muckleshoot
Indian
Tribe.
In
addition,
the
fisheries
agencies
have
imposed
operational
restrictions
on
the
diversion
related
to:
•
minimum
flow
releases,
and
•
the
rate
at
which
flow
changes
are
imposed
(ramping
rates),
and
may
impose
operational
restrictions
on
sediment
releases.
•
Operation
requires
an
attendant
24
hours
per
day.
The
facility
is
to
be
automated.
The
portion
of
the
report
that
is
quoted
above
represents
the
identification
and
articulation
of
technological
uncertainty.
The
following
passage
sets
out
the
hypotheses
which
the
testing
program
was
intended
to
test:
Project
Options
HDR
has
identified
five
project
design
options.
The
number
of
options
or
the
features
of
the
options
might
be
changed
before
or
during
the
physical
modelling
program.
Three
of
the
design
options
are
currently
under
consideration
for
physical
modelling
investigation.
The
three
options
which
are
candidates
for
modelling
include
the
modifications
to
the
intake
which
were
included
in
the
FERC
license
application
and
can
be
described
as
follows:
•
intake
entrance
moved
about
30
feet
towards
river,
•
louvered
debris
barrier
(replaceable
by
stoplogs)
at
entrance,
•
overhung,
submerged
headwall
at
intake
entrance,
¢
cantilevered
intake
deck
to
form
a
bed
load
sediment
barrier,
and
•
two
slide
gates
replace
by
one
larger
radial
gate.
Other
proposed
features
include
a
log
boom
and
a
boat
barrier.
The
options
also
all
include
new
concrete
structures
with
various
gate
arrangements.
They
differ
only
in
the
arrangement
of
gates
and
sluices
in
the
dam.
The
options
can
be
described
as
follows:
Option
I
-
This
option
includes
radial
gated
sluices
and
a
free
ogee
crest
arranged
from
left
to
right
across
the
dam
as
follows:
¢
3
sluice
bays,
each
50
feet
long
with
floor
at
El
660
ft
controlled
by
11-foot
high
radial
gates
on
a
sill
at
El
660.5
ft.
These
bays
would
be
separated
upstream
and
downstream
by
training
walls
extending
vertically
to
El
666
ft.
•
free
ogee
crest
El
671.5
extending
from
the
sluice
bays
to
the
right
abutment
to
operate
only
if
flows
exceeded
18,000
cfs.
Option
IT
-
This
option
includes
flow
release
control
by
collapsible
rubber
dams
with
arrangement
from
left
to
right
across
the
dam
as
follows:
•
a
narrow
sediment
sluice
with
floor
at
El
660
ft
and
a
20-
foot
sluice
gate
11
feet
high.
•
3
bays,
each
50
feet
long
with
floor
at
El
660
ft
controlled
by
11-foot
high
collapsible
rubber
dams
fastened
to
a
sill
at
EI
660.5
ft.
These
bays
are
separated,
downstream
only,
by
training
walls.
•
free
ogee
crest
to
El
671.5
extending
to
the
right
abutment.
Option
III
-
This
option
was
included
in
the
FERC
license
application
and
includes
four
sediment
sluices
separated
by
overflow
sections
with
bascule
gates
with
arrangement
from
left
to
right
as
follows:
•
overflow
section
28
feet
long
with
crest
at
El
666
ft
and
controlled
by
a
bascule
gate
to
El
671
ft.
•
a
narrow
sediment
sluice
with
floor
at
El
660
ft
and
a
20-
foot
sluice
gate
11
feet
high.
•
overflow
section
28
feet
long
with
crest
at
El]
666
ft
and
controlled
by
a
bascule
gate
to
El
671
ft.
•
a
narrow
sediment
sluice
with
floor
at
El
660
ft
and
a
20-
foot
sluice
gate
11
feet
high.
•
overflow
section
65
feet
long
with
crest
at
El
666
ft
and
controlled
by
a
bascule
gate
to
El
671
ft.
•
a
narrow
sediment
sluice
with
floor
at
El
660
ft
and
a
20-
foot
sluice
gate
11
feet
high.
•
overflow
section
65
feet
long
with
crest
at
El
666
ft
and
controlled
by
a
bascule
gate
to
El
671
ft.
•
a
narrow
sediment
sluice
with
floor
at
El
660
ft
and
20-
foot
sluice
gate
11
feet
high.
•
overflow
section
65
feet
long
crest
at
El
666
ft
and
controlled
by
a
bascule
gate
to
El
671
ft
extending
to
the
left
abutment.
The
following
passage
sets
out
the
objectives
which
the
modelling
program
is
intended
to
achieve:
Objectives
of
Modelling
Program
The
performance
of
the
three
structure
options
will
be
judged
on
the
basis
of
a
model
testing
program
designed
to
determine:
•
Ability
of
the
structure
to
pass
bedload
without
allowing
it
to
enter
the
canal,
deposit
in
the
vicinity
of
the
canal
intake,
or
interfere
with
the
downstream
fish
passage
facilities;
•
Ability
of
gated
outlets
to
remove
sediments
deposited
immediately
upstream
from
the
dam;
•
Ability
to
release
flows
downstream
from
the
structure
that
produce
acceptable
scour
and
deposition
patterns
and
safe,
controlled
dissipation
of
kinetic
energy;
•
Sensitivity
of
structure
performance
to
shifts
in
upstream
approach-flow
direction
caused
by
channel
instability;
•
Water
levels
corresponding
to
floods;
•
Uniformity
of
flow
entering
canal.
Any
tendency
for
uneven
flows
producing
dead
areas
or
upstream-directed
currents
are
conducive
to
settling
of
suspended
sediment
and
increased
head
loss,
and
should
be
avoided.
•
Head
losses
for
flow
entering
through
the
canal
intake,
to
determine
if
the
required
offtake
capacity
can
be
achieved
within
design
water-level
differences
between
forebay
and
canal;
•
Capability
to
manage
floating
debris
by
preventing
it
from
entering
the
intake
area,
and
guiding
it
to
preferred
collection
areas.
In
addition
to
the
above
criteria
established
for
comparison
of
the
options,
the
following
model
objectives
will
be
achieved
for
the
preferred
option:
•
Measurement
of
velocities
for
use
in
upstream
dike
design;
•
Establishing
a
detailed
strategy
of
dam
gate
operation
for
effective
passage
of
bedload;
•
Determination
of
number,
extent,
alignment
and
top
elevation
of
any
needed
divide
walls;
•
Assessment
of
feasibility
of
near-field
sediment
excluder
near
canal
intake
(optional).
I
shall
not
quote
extensively
from
the
portion
of
the
report
“Need
for
Physical
Modelling”
beyond
observing
that
the
appellant
is
very
familiar
with
numerical
modelling
and
rejected
it
as
a
reliable
form
of
testing
its
hypotheses.
Numerical
modelling
is
an
alternative
to
physical
modelling
only
where
“flow
conditions
and
sediment
-
transport
processes
are
simple
enough
to
be
represented
by
a
numerical
simulation”.
In
a
complex
project
of
this
sort
a
form
of
testing
that
is
essentially
two-
dimensional
is,
in
the
view
of
the
appellant,
simply
inadequate
and
indeed
risky.
I
accept
the
appellant’s
opinion
on
this
point.
The
result
of
the
numerous
tests
that
were
performed
was
that
a
design
was
developed
that
resolved
the
uncertainties
associated
with
the
initial
design.
Sediment
entering
the
canal
was
reduced,
the
intake
flow
distribution
was
improved,
the
accumulation
of
debris
was
reduced
and
downstream
scour
was
reduced.
The
most
significant
difference
in
the
final
design
from
the
initial
design
was
the
construction
of
radial
gates,
the
inflatable
rubber
weirs,
and
three
walls,
(excluder,
divide
and
deflector)
adjacent
to
the
intake
to
the
power
canal.
Of
all
of
the
projects
put
in
evidence
this
one
in
my
view
resulted
in
the
greatest
amount
of
technological
advance.
It
is
true
that
any
one
of
the
features
of
the
final
design
may
have
been
known
-
rubber
weirs,
radial
gates
and
walls
of
different
types
were
known.
It
was
the
innovative
combination
and
alignment
of
these
factors
that
makes
this
project
unique.
In
fact,
it
was
described
in
a
published
paper
by
Dr.
Babb,
Michael
Blanchette,
a
senior
engineer
with
Puget
Sound
Power
&
Light
Co.,
and
Robert
King,
an
engineer
with
the
client
HDR
Engineering
Inc.
The
conclusion
of
the
article
was
as
follows
(Exhibit
A-13):
Conclusions
The
proposed
replacement
dam
for
the
White
River
Project
uses
bedload
deflector
and
excluder
walls
and
a
flow
divide
wall
combined
with
set
opening
sequences
for
the
gates
and
rubber
weirs
to
provide
the
effective
bedload
passage.
The
replacement
structure
uses
a
12
bay
intake
works
at
the
left
abutment
of
the
dam
with
a
release
system
featuring
two
radial
gates
and
two
rubber
weirs.
The
structure
successfully
diverts
flow
with
a
minimum
of
bedload
material
entering
the
intake.
Favourable
attraction
flows
to
the
left
bank
fish
entrance
were
established
with
the
riverward
relocation
of
the
entrance
and
the
early
use
of
RG1
to
pass
flows
adjacent
to
the
fish
entrance
to
eliminate
the
return
eddy.
A
bucket
type
dissipater
is
used
downstream
of
RG2
to
control
scour
and
to
reduce
the
magnitude
of
the
return
flow.
Most
debris
approaching
the
dam
will
accumulate
on
the
left
bank
upstream
from
the
radial
gates,
from
where
it
will
be
either
hydraulically
passed
or
removed
mechanically.
The
design
of
the
proposed
facilities
was
studied
and
improved
with
the
use
of
a
hydraulic
model.
Significant
benefits
of
the
physical
model
included:
design
refinement,
gate
sizing,
scour
prediction,
bedload
behaviour
prediction,
and
agency
demonstration
and
consensus
building.
Mr.
King
testified
concerning
the
need
to
retain
the
appellant
and
it
was
because
he
believed
that
even
a
firm
as
large
as
his
had
reached
the
limit
of
its
capabilities.
I
have
dealt
at
length
with
the
White
River
Project
because
it
represents
in
my
view
a
model
of
what
an
SRED
project
should
be.
Every
element
of
the
criteria
set
out
at
the
beginning
of
these
reasons
is
met:
technological
uncertainty,
engineering
that
goes
far
beyond
the
routine,
methodical
testing
of
untested
and
innovative
hypotheses
and
significant
technological
advances.
I
am
greatly
indebted
to
the
two
highly
qualified
and
impressive
experts
that
were
called.
Professor
C.D.
Smith,
was
called
by
the
appellant
and
Joe
Ploeg
who
was
called
by
the
respondent.
Although
they
arrived
at
very
different
conclusions
they
were,
interestingly,
not
that
far
apart
in
some
of
their
approaches.
I
think
that
what
divided
them
was
the
question
whether
the
appellant’s
activities
constituted
routine
engineering
or
standard
practice
and
whether
technological
advances
were
achieved.
Mr.
Ploeg
adopted
the
statement
in
the
information
circular:
Standard
Practice
refers
to
directly
adapting
a
known
engineering
or
technological
practice
to
a
new
situation
when
there
is
a
high
degree
of
certainty
that
the
known
technology
or
practice
will
achieve
the
desired
objective.
In
his
initial
report
Mr.
Ploeg
appeared
to
concentrate
on
the
question
whether
advances
were
made
in
the
theory
or
practice
of
hydraulic
modelling.
That
was
not
the
basis
of
the
claims:
The
design,
calibration
and
operation
of
the
hydraulic
models
for
the
17
projects
included
in
this
SR&ED
claim,
can
only
be
described
as
“standard
practice”
or
“routine
engineering”.
The
proposals
for
hydraulic
model
tests,
prepared
by
NHC
express
a
high
degree
of
confidence
that
their
technological
knowledge
base
(i.e.
their
knowledge
and
understanding
of
the
theory
and
practice
of
hydraulic
modelling)
is
quite
comprehensive
and
certainly
sufficient
to
achieve
the
desired
objectives
(ref.
par.
4.2
of
IC
86-4R3).
Having
carefully
reviewed
all
17
projects,
it
is
my
opinion
that
no
new
materials,
devices,
products
or
processes
have
been
created,
or
existing
ones
improved.
Each
project
provided
important
information
to
NHC’s
clients,
allowing
them
to
optimize
the
design
of
a
structure
or
a
system.
All
projects
presented
new
situations,
but
standard
hydraulic
modelling
practices
could
be
used
to
achieve
the
objectives
of
each
project.
In
his
rebuttal
report
Mr.
Ploeg
concentrated
rather
on
whether
the
projects
led
to
generic
or
specific
technological
advancements,
and
stated:
The
actual
method
used
for
solving
an
engineering
design
problem,
be
it
physical
or
mathematical
modelling,
does
by
itself
not
lead
to
advancing
the
technological
base.
This
observation
may
be
true
but
the
real
question
is
whether
the
projects
themselves
led
to
technological
advances.
Mr.
Ploeg
stated
in
paragraph
2.2
of
his
rebuttal
report:
A
detailed
review
of
the
17
projects,
with
particular
reference
to
the
“advancements”
listed
in
appendix
1
of
the
Expert’s
Report,
shows,
however,
that
no
real
new
or
improved
devices
or
processes
were
developed.
The
devices
and
processes
developed
by
NHC
in
the
course
of
the
modelling
work
for
these
17
projects
may
have
been
“new”
in
the
sense
of
a
new
location
(i.e.
a
hydraulic
structure
that
was
not
there
before,
or
the
implementation
of
a
river
improvement
scheme),
but
all
of
the
work
described
in
the
NHC
project
reports
refers
to
standard
devices
and
processes,
which
are
routinely
used
in
similar
design
situations
all
over
the
world.
After
reviewing
the
17
projects
at
issue,
I
have
concluded
that
none
of
the
projects
led
to
generic
or
specific
technological
advancements,
with
the
possibility
of
creating
new
or
improving
existing
devices
or
processes,
which
could
also
have
been
used
in
other
engineering
design
situations.
A
test
of
such
an
advancement
would
be
the
possibility
of
a
patent.
Interpretation
Bulletin
IT-439
(17
Sep.
1974)
which
applies
to
most
of
the
projects,
is
quite
specific
in
defining
the
meaning
of
“new”.
Par.
8
of
this
bulletin
states:
“It
is
the
Department’s
view
that
“new”
refers
to
a
product
or
process
that
is
new
to
the
particular
taxpayer
in
Canada.
However,
where
a
taxpayer
merely
duplicates
another
person’s
product
or
process,
the
scientific
research
(i.e.
systematic
investigation)
carried
out
will
probably
be
minimal
and
will
be
considered
routine
testing,
which
is
an
excluded
activity
by
virtue
of
2900(e).”
Professor
Smith,
in
his
report,
analyzed
the
qualifications
of
the
persons
at
NHC
who
engaged
in
the
activities,
and
discussed
the
concepts
of
technological
uncertainty,
technological
advancement,
and
systems
uncertainty.
His
conclusion
was
as
follows
(Exhibit
A-14):
With
regard
to
NHCL
experimental
development
work
using
physical
hydraulic
models,
it
may
be
concluded
that:
a)
The
work
has
been
performed
using
a
systemic
approach
using
qualified
personnel
with
relevant
experience.
b)
In
each
of
the
17
projects
reviewed,
without
exception,
problems
requiring
solutions
were
identified
that
could
not
be
resolved
by
analytical
methods
alone.
An
experimental
development
program
including
the
use
of
a
physical
hydraulic
model
was
required
in
each
case.
c)
Technological
advancement
has
been
achieved
in
several
ways.
First,
a
technological
uncertainty
was
eliminated
or
reduced,
without
which
the
project
could
not
proceed.
Second,
design
solutions
which
were
found
experimentally
advanced
the
understanding
of
the
problem
so
that
the
knowledge
gained
could
be
used
to
advantage
on
subsequent
studies
of
similar
problems.
Third,
as
a
result
of
cumulative
experience
gained
from
each
new
investigation,
the
knowledge
base
of
the
NHCL
engineers
and
specialists
was
advanced.
In
summary,
in
the
opinion
of
the
writer,
the
17
NHCL
projects
reviewed
satisfy
the
criteria
for
experimental
development
as
defined
in
the
Income
Tax
Act.
His
comments
on
each
of
the
projects
that
were
put
in
evidence
were
as
follows:
1
East
Rapti
Irrigation
Project
(1984)
Location:
Nepal
Client:
Nippon
Koei
Co.
Ltd.,
Tokyo
Object:
Development
of
hydraulic
structures
and
river
protection
works
Model
type:
River
model
(distorted)
1:200,
1:50
scale,
hydraulic
structure
(2
models)
1:30
scale
Uncertainty:
The
unknown
effect
of
heavy
sediment
movement
and
complicated
structure
combination
(including
weir,
sluiceway,
headgate,
ejector,
settling
basin,
fish
ladder,
log
passage
and
river
training
works)
on
project
performance.
Observations:
Problems
with
adverse
flow
patterns,
scour,
sedimentation,
and
discharge
capacity
were
observed.
Advancement:
Modifications
were
made
to
the
upstream
river
training
works,
sluiceway,
canal
intake,
aprons
and
log
passage
thus
facilitating
development
of
the
project.
4
Schuylkill
River
Sedimentation
study
(1991)
Location:
Pennsylvania
Client:
City
of
Philadelphia
Object:
Investigate
sedimentation
problem
at
boat
dock
Model
type:
River
model,
1:65
scale
Uncertainty:
The
cause
of
existing
sedimentation
problems
at
Boathouse
Row,
and
remediation
measures
needed
to
correct
the
existing
undesirable
and
unsafe
conditions.
Observations:
Adverse
natural
sedimentation
patterns
were
observed.
An
attempted
correction
by
bank
groins
was
unsatisfactory,
and
by
flushing
was
unsatisfactory.
An
in-line
dividing
wall
with
an
upstream
groin
was
most
effective.
Dredging
was
found
to
be
a
temporary
solution
only,
Advancement:
The
sedimentation
pattern
caused
by
the
bend
effect
was
corrected
by
a
dividing
wall.
5
Walters
Dam
Apron
Repair
(1991)
Location:
North
Carolina
Client:
Carolina
Power
and
Light
Co.,
Raleigh
NC
Object:
Investigate
apron
failure
of
existing
spillway
Model
type:
Hydraulic
structure,
1:38
scale
Uncertainty:
The
cause
of
the
failure
of
the
existing
apron,
and
the
nature
of
corrective
action
required
to
avoid
future
problems.
Observations:
The
apron
failure
was
caused
by
uplift
pressure
related
to
the
design
and
operation
of
the
existing
structure.
Advancement:
A
gate
sequence
operation
to
reduce
uplift
force
on
the
apron
was
determined,
and
a
set
of
radial
divide
walls
was
devised
for
the
basin
to
improve
flow
distribution.
7
White
River
Diversion
Dam
(1992)
Location:
Washington
Client:
HDR
Engineering
Inc.,
Bellevue
Object:
Rehabilitation
and
upgrading
of
80
year
old
diversion
dam
Model
type:
River/hydraulic
structure,
1:40
scale
Uncertainty:
The
effect
of
design
modifications
on
performance,
and
the
mechanism
for
control
of
sediment
&
debris
flows
at
intake
and
problems
of
flood
passage
during
construction
were
unknown.
Observations:
Flow
patterns
and
bed
load
movement
for
several
gate
alternatives
and
intake
arrangements
was
observed,
and
downstream
scour
patterns
were
observed.
A
divide
wall
was
required
for
the
intake
structure.
Advancement:
The
cofferdam
arrangement
for
construction
was
devised
and
the
gate
sequence
operations
for
sediment
evacuation
were
determined.
The
uncertainties
were
removed.
17
Belleville
Hydroelectric
Project
(1994)
Location:
Ohio
River,
Ohio
Client:
Omega
JVS,
AMP
-
OHIO,
Westerville
Object:
Study
impact
of
powerhouse
addition
on
project
Model
type:
River
model,
scale
1:100;
powerhouse
section
model,
scale
1:30
Uncertainty:
The
effect
of
cofferdam
works
and
powerhouse
discharge
on
navigation,
stage,
surge
and
sedimentation
was
observed.
The
powerhouse
was
located
in
a
deep
recess
in
the
left
bank.
Observations:
High
left
bank
velocities
and
increased
bed
mobility
were
noted
downstream
from
the
powerhouse,
requiring
design
changes
in
the
powerhouse
tailrace
channel.
Advancement:
Design
improvements
were
made,
the
uncertainties
were
removed
and
project
development
facilitated.
In
his
rebuttal
report,
in
which
he
comments
on
Mr.
Ploeg’s
report,
Professor
Smith
stated:
In
all
but
one
of
the
studies
claimed
by
NHC,
their
client
(or
the
client’s
engineer)
had
applied
standard
design
practice
in
attempting
to
adapt
a
known
engineering
practice
to
a
new
situation.
But
they,
or
the
regulatory
agency
responsible
for
granting
approvals,
or
both,
did
not
have
a
high
degree
of
certainty
that
the
resulting
design
would
achieve
the
desired
objectives.
It
is
because
of
this
uncertainty
that
an
experimental
investigation
using
hydraulic
modelling
was
undertaken.
In
paragraph
2.4
of
his
rebuttal
report
he
observed:
Given
that
extensive
modifications
were
required
on
a
number
of
the
designs
subjected
to
experimental
evaluation
and
development
and
that
the
end
product
often
bore
little
resemblance
to
the
initial
conceptual
design,
it
is
unrealistic
to
depict
the
technological
character
of
the
product
(hydraulic
structure
or
system)
as
being
‘substantially
set’.
Realistically
the
objectives
were
to
determine
if
the
initial
design
worked
at
all,
to
determine
what
the
performance
problems
were,
and
to
systematically
resolve
these
problems
in
an
experimental
development
program.
A
further
indication
that
technological
advancement
occurred
is
related
to
the
uncertainty,
in
the
minds
of
the
designers,
or
regulators,
about
the
capability
of
the
initial
design
to
perform
satisfactorily
in
terms
of
the
design
objectives.
It
is
this
uncertainty
that
resulted
in
the
need
to
have
NHC
undertake
an
experimental
investigation.
In
almost
all
cases
the
experimental
work
showed
that
the
uncertainty
was
well
founded
as
the
experimental
evaluation
indicated
significant
performance
problems.
These
problems
were
solved
by
subsequent
experimental
development
work.
It
is
my
opinion
that
this
constitutes
a
technological
advance
in
that
known
engineering
practices
could,
as
a
result
of
experimental
development,
be
confidently
applied
to
a
new
situation
where
this
could
not
be
done
solely
through
application
of
standard
design
practice.
The
conclusions
stated
in
his
rebuttal
report
were
as
follows:
I
have
concluded
that
the
Ploeg
Report
is
incorrect
with
respect
to
the
following:
1.
The
basis
for
the
NHC
claim
is
in
the
area
of
experimental
development
of
designs
for
hydraulic/sediment
control
structures,
not
in
model
testing
technology.
2.
NHC
work
in
development
of
designs
for
hydraulic/sediment
control
structures
by
physical
hydraulic
model
testing
does
not
fall
in
the
category
of
standard
practice
in
hydrotechnical
engineering.
3.
The
methodology
followed
by
NHC
in
conducting
their
experimental
studies
was
to
use
a
hydraulic
model
as
a
tool
to
evaluate
performance
of
their
Client’s
initial
design,
to
identify
performance
problems
and
to
systematically
solve
these
problems
in
an
experimental
development
program.
This
differs
significantly
from
a
methodology
whereby
many
variants
of
a
design
are
tested
with
the
test
data
then
used
to
prepare
a
satisfactory
and
optimal
design.
4.
NHC
modelling
specialists
clearly
had
a
major
responsibility
in
the
experimental
development
work
in
each
of
the
studies
included
in
the
claim.
5.
A
technological
advance
was
made
for
each
of
the
studies
undertaken,
including
an
increase
in
the
technological
knowledge
base
of
the
NHC
specialists.
It
was
obvious
that
each
expert
had
great
respect
for
the
ability,
experience
and
qualifications
of
the
other
one.
Although
I
recognize
and
respect
Mr.
Ploeg’s
expertise
in
this
area,
I
have
concluded
that
Professor
Smith’s
opinion
is
more
consonant
with
the
evidence
adduced
and
my
own
view
of
what
constitutes
SRED
for
the
purposes
of
the
Income
Tax
Act,
except
that
I
am
not
persuaded
that
the
Schuylkill
project
constitutes
SRED.
The
respondent’s
position,
ably
articulated
by
Mr.
Yaskowich,
was
essentially
that
the
appellant,
admittedly
a
world
leader
in
the
field
of
hydraulic
model
testing,
by
its
own
excellence
sets
the
standard
for
what
represents
routine
engineering
or
standard
practice.
With
respect
I
think
that
this
sets
an
unrealistically
high
standard
-
indeed
a
standard
of
perfection
that
would
discourage
scientific
research
in
Canada.
It
is
quite
true,
as
Mr.
Yaskowich
observes,
that
the
work
done
by
NHC
does
raise
the
client’s
confidence
in
a
solution
that
is
proposed
or
devised,
but
I
do
not
think
that
this
fact
in
itself
detracts
from
the
nature
of
the
activity,
or
makes
it
any
the
less
SRED.
He
contends
further
that
it
is
wrong
to
equate
technological
uncertainty
with
the
client’s
lack
of
confidence
that
a
design
will
work.
Expressed
in
that
way,
I
agree,
but
it
goes
beyond
that.
The
technological
uncertainty
is
something
that
exists
in
the
mind
of
the
specialist
such
as
the
appellant,
who
identifies
and
articulates
it
and
applies
its
methods
to
remove
that
uncertainty.
I
have
concluded
that
four
of
the
five
projects
described
above
qualify
as
SRED.
Since
the
parties
are
still
actively
negotiating
figures
counsel
for
the
appellant
is
directed
to
prepare
a
draft
judgment
incorporating
these
conclusions.
The
appellant,
having
been
substantially
successful,
is
entitled
to
its
costs.
Appeal
allowed.