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940 ARIZONA LAW REnEW "government could either recapture or allow someone else to recapt~ upon paying the net investment of the allottee;'I02 '", Nevada and Arizona contend that although the second two Swin Johnson bills materially changed the renewal provisions,103 the final ...~ sion still provided for recapture in a way that paralleled the Federal Power Act.104 Under this view, the right of renewal is not absolute but may be denied if compensation is paid pursuant to section 617d(b).IOS MoreOver. since Arizona and Nevada conclude that the preference for states appl~ on renewal,t06 and that section 617d(b) permits the denial of rCIk1rJ1 ,rights upon compensation, they argue that the Committee must have 0..' i tended ftheh BCP A's ast seArizrt~d "superd-prNeferednce" right to permi~ a reaI1oI. i ment 0 t e power 0 ona an eva a upon compensatIon of the 'l; :::::::::or the loss of lheh oonnaas.''' ::.':,~.,~1 J: ~- ~ . Finally, Nevada and Arizona assert that the exercise of their alleged "super-preference" right is not subject to the public interest criteria fonnu- lated in the Federal Power Act and incorporated in the BCPA.108 Their argument rests upon the structure of section 617d(c), in which the prefer. ence clause is set off by a comma and the words "except that"l09 as JJl apparent exception to the public interest criteria.llo The states contend. moreover, that this reading of the Act is supported by the congressiolUJ purpose underlying the section. 1 II If the special preference for the states was enacted in accordance with the Pittman Resolution and in full rCCO!- 102. Id 103. The second two Swing-Johnson Bills changed the original language, see SIIpra nOle 99. lit that which eventually became 43 U.S,C. i 617d(b) (1976): The holder of any contract for electrical energy not in default thereunder shall be entitled to renewal thereof upon such terms and conditions as may be authorized Of required under the then existing laws and regulations, unless the property of such holder dependent for its usefulness on a continuation of the contract be purchased or a~uircd and such holder be compensated for damages to its property, used and useful m the transmission and distribution of such electrical energy and not taken, resulting from tM termination of the supply. See Nevada Brief, supra note 8, at 29-30. 104. See S. REP. No. 654, 69th Cong., 1st SeSs. 27 (1926). "Provision is made for renewaa ' along the lines provided in the Federal Power Act for renewals of lice~." Id See aJsq 16 U.S.C. ~ 807, 808 (1976); supra notes 98-99 and accompanying text 105. See 43 U.S.C. i 6I7d(b) (1976); 16 U.S.C. ii 807, 808 (1976). 106. See Nevada Brief, supra note 8, at 10; supra notes 95-104 and accompanying leXL ' 107. See Nevada Brief, supra note 8, at 43-44. This argument, if it is accepted that Coosrc- intended a mandatory one-third diversion of the Hoover power, is lent a certain credence by !be fact that it was manifest at the time of the power allotment that Arizona and Nevada cou~d o.:c take and use one-third of the power, let alone pay for it to amortize the project as required III !be Act. See CONTRACTS,supra note 4, at 601. The argument is simply that by inserting ~e "Rap- ture" provision, Congress intended to afford the states the opportunity to exercise thew "1\Ipct- preference" right on renewal. See Nevada Brief, supra note 8, at 43-44. 108. See Nevada Brief, SUrD note 8, at 72. See also 16 D.S.C. i 800(a) (1976) (the FedcnI Power Act's preference critena); 43 U.S.C. fi 617d(c) (1976) (the BCPA's criteria. incorponbDI those of the Federal Power Act). ,'"", 109. See 43 U.S.C. fi 617d(c) (1976). '..,:" 110. S~e Nevada Brief, supra note 8, at 80. Ill. Seeid ,/" 19S2/ t nition 0 stateS as rial disc ul unde the state significa tary of made a policy 0 preferen Ina vada an three co states in within uacted ti ment p preferen and the same pri vada's vi by the S Pur izona ea of one- ther de at Hoov these ad ~ .. g