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001537 ~< !;' l:. i.l, IT I'"~ I~ f }.- 1 19821 HOOVER DAM ENERGY 941 ttition of the rights of the states upon whose land the dam was built,1I2 the states assert that to make this recognition of states' rights subject to secreta-' rial discretion regarding the public interest would ''upset [the] fundamen- tal understanding of the balanced roles of the Federal Government and the states in the development of Hoover Dam." 113 The states also find it ~gnificant that Congress rejected an amendment proposed by the Secre- tarY of the Interior that would have ,deleted the preference clause and made all allotments subject to secretarial discretion in accordance with the policy of the Federal Power Act.1l4 Thus, it is argued that the "super- preference" right cannot be subject to any form of secretarial discretion. I IS In addition to the required compensation of previous contractors, Ne- vada and Arizona state that the "super-preference" right is subject to only three conditions. First, under section 617d(c), the power taken by the states in accordance with the "super-preference" right may be used only within the state.116 Moreover, the "super-preference" right must be con- tracted for within six months after the Secretary gives notice of the allot- ment pursuant to the preference section of the Act.ll7 Finally, the preference granted by the statute is no more than an entitlement to power, lIld the states must contract on the same terms and conditions, and at the same price, as any other power contractor.ltS Thus, in Arizona and Ne- vada's view~ the asserted "super-preference" right is not limited in any way by the Secretary's discretion in applying the preference c1ause.119 Pursuant to this view of the "super-preference" right, Nevada and Ar- izona each demand an allocation when the current contracts expire in 1987 of one-third of the existing Hoover firm energy capacity.120 The states fur- ther demand an. allocation of one-third of any new power capacity created at Hoover Dam by the proposed Hoover upgrading and Hoover "mod," if these additions are financed by the federal government.t21 For Arizona ~~ " " r 1'1i ' :; ~ ' , 1'(" : !~', . :: rL '. i:t:.. "; i.;.,' ' ~r, i;,L ' ", ." ~ ","-' ~--..,. };;:: I~i' . ~,!:, I;.: j;, 'I, \:q ...', r:C ',\', ~,[ !'. , !; i~P liJ. ~" ~':;' Ilii! f~!j~ _: ~~:~\' : ',f. l';ij ~l-l ~ IV' ~Iifl'l'" n, ';i"l" :l.~ (!: ' .w " ~ ~ t:, ' ~",: , ;~ -' . n ~!;; ~ 112. See id at 83; .see supra notes 81-85 and accompanying text. III Nevada Brief, supra note 8, at 83. The Pittman Resolution in part arose from the now- tlisaedited concern over the federal government's constitutional power to engage in the sale of power for profit. See 69 CONGo REc. 9652"54; Nevada Brief, supra note 8, at 63-64. . 114. See Nevada Brief, supra note 8, at 82. Weight is often given to congressional action rqecting proposed amendments. See National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 460-61 (1974). 1lS. See Nevada Brief, .supra note 8, at 83. 116. See 43 U.S.C. fi 617d(c) (1976); Nevada Brief, supra note 8, at 70. 117. See 43 U.S.C. fi 6I1d(c) (1976); Nevada Brief, supra note 8, at 70. 118. See 43 U.S.C. fi 617d(c) (1976); Nevada Brief, supra note 8, at 70. 119. See 43 U.S.C. fi 617d(c) (1976); 16 U.S.C. fi 800(a) (1976);sup,a notes lOS-IS and accom- panying text; sup,a notes 52-69 and accompanying text. 120. Joint Statement of the APA and the NCRC, supra note 8. Firm power is dependable tnergy calculated on the bll$is of anticipated stream flow, while secondary energy is undependable energy available when the water level is in excess of the anticipated stream flow. See Arizona Power Auth. V. Morton, 549 F.2d 1231, 1236 n.20 (9th Cir. 1977). ' 121. Joint Statement of the APA and NCRC,su.e,a note 8. The Hoover upgrading is a project lhrough which the existing generating equipment will be made more efficient, so as to increase the Umc-plate ratin~ of the Hoover Dam from 1,340 MW to 1,800 MW of firm power. Proposed ~eting Critena, supra note 4, at 46,867. The Hoover "mod" will increase the name-plate Iaung by another 500 MW. Id The "mod" increase will produce only peaking power, not firm en~gy, Id at 46,869. If the federal government refuses to finance the upgrading and "mod." ArizOna and Nevada have offered to finance the projects through-bonds and are willing to obtain 1II FERC license to operate them. Joint Statement of the APA and NCRC, sup,a note 8. The r, ~:' ' k: I: . ~. ,!: ; t:, , k~',,~ . ' : , V, Iii' !,~~ ; { : - ! i \ ! ! i I \\ 1 I \ J ; i " , ! .,.~ ! ; . , ,