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<br />
<br />928
<br />
<br />ARIZONA LAW REVIEW
<br />
<br />IVol 2c
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<br />The remaining thirty-six percent of the power is divided equally between
<br />Arizona and Nevada.6
<br />California contends that it has, by contract and by statute, an absolute
<br />right to a renewal of its present contracts in kind, including a right to aU
<br />energy now available to it.7 Arizona and Nevada, on the other hand, as-
<br />sert that the BCPA granted each of the three states a mandatory right to
<br />one-third of the entire Hoover Dam power output, and that the realloca_
<br />tion of the Hoover power must be governed by this right, which takes pre-
<br />cedence over California's asserted right of renewal.8 Both sides argue that
<br />the Secretary of Energy has no discretion in allocating the Hoover power.'
<br />The Western Area Power Administration (WAPA), the agency in
<br />charge of marketing Hoover power, does not support either position.
<br />WAP A believes that the Secretary has administrative discretion to estab.-
<br />lish new terms and conditions for contract renewal and is not bound either
<br />to renew the existing contracts in kind or to grant each state a one-third
<br />allocation of Hoover power.IO
<br />The different positions taken by the parties interested in the upcoming
<br />reallocation of Hoover power have resulted in part frOm a certain ambigu-
<br />ity in the statute governing the power allocations. The BCPA grants both
<br />a right of contract renewal and a preference to certain public entities, in-
<br />cluding states and municipalities. I I
<br />
<br />6. Id
<br />7. See id; CaIifonua Hoover Allottees, Brief of the California Hoover Dam Power AUouccs
<br />re Rights of Renewal of Hoover Dam Power Contracts III (Sept. IQ, 1981) (filed with lhe Secre-
<br />tary of Energy) (hereinafter cited as California Brief); Statement of the California Hoover AIJot-
<br />tees at Western Area PO\Y.l;l..Administration (WAPA) Public Comment Forum, Las Vegas, Nevada
<br />(Jan. 21, 1982). 43 U.S,C,'fi.617d(b) (1976) provides, among other things, that the holder of,
<br />power contract for BCP A energy is entitled to a renewal of the contract upon the terms aulhorizcd
<br />m the then-cxisting laws and regulations. The right of renewal is contained, in language identiaJ
<br />to that employed in the statute, in the contracts for Hoover power made between the SecreLuy 0(
<br />the Interior and the California aIlottees. See Boulder Canyon Project General RegulatiODJ:
<br />Leases and Contracts for Hoover Dam Power, arts. XVII & XVIII. in CONTRACTS, supra nOle 4. II
<br />114.
<br />,8. See Proposed Marketing Critieria, supra note 4, at 46,864; Joint Statement of the AriTou
<br />Power Authority and the Nevada, Colorado River Commission, WAPA Public COll1lDent Forum.
<br />Las Vegas, Nevada (Jan. 21, 1982); Attorney General of the' State of Nevada, Legal Position oft:le
<br />State of Nevada with Respect to the Next Allocation of Power from Hoover Dam 8-9. (Jan. 1.
<br />1981) (filed with the Secretary of Energy) (hereinafter cited as Nevada Brief). Arizona and Ne-
<br />vada base their claim for a mandatory one-third aIlocation of the power on 43 U.S.C. ~ 617d(cl.
<br />which grants preference to applicants for electrical energy first to states and then to other pubJjc
<br />entities. See 43 U.S.C. fi 617d(c) (1976). The Act further provides that Arizona, California, and
<br />Nevada shaIl have "equal OPportunity as such applicants. OJ Id ,
<br />9. See California Brief,mpl'O note 7, at 18-23; Nevada Brief, mpl1l note 8, at 83. The orip-
<br />nal authority to administer the power aspects of the Boulder Canyon Project was in the Sccrcwy
<br />of the Intenor, who administered the program through the Southwestern Power Administratioll..
<br />The Department of Energy Organization Act of 1917, however, transferred this function 10 the
<br />Secretary of Energy. 42 U.S.C. fi 7152(a)(I)(B) (West Supp. 1982). The Western Area POWCf
<br />AdminiStration (WAPA) of the Department of Energy is now in charge of marketing HOO\'U
<br />power. See Proposed Marketing Criteria, mpra note 4, at 46,864. The transfer has made DO
<br />change in the applicable provisions of the BCP A. See id at 46,866.
<br />10. See Proposed Marketing Criteria, supra note 4, at 46,864; WAP A Staff Discussion Paper
<br />Concerning Boulder Canyon Project Issues 1-5 (Dec. 10, 1980) (hereinafter cited as WAPA SuJf
<br />Discussion Paper]. WAPA has stated, however, that the existing contractors will be offered new
<br />contracts in individual amounts to be determined. Proposed Marketing Criteria, supra nOle 4. al
<br />46,869. .
<br />11. See 43 U.S.C. fi 617d(b), (c) (1976).
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