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I I I I I I I I I I I I I I I I I I I 002326 determination on the effects of the appropriate operational and maintenance activities on the lower Colorado River system. In accordance with the ESA and the attendant FWS CFR regulations, and for the purpose of establishing the action under consultation, this subsection specifically identifies future Reclamation activities which are discretionary and differentiates as non-discretionary those activities mandated by law, Court decrees, settlement acts, codified regulations, contracts, or other legal requirements. The following discussions differentiate between the Secretary's discretionary and non-discretionary authority for each of the major actions addressed by this BA. Conservation measures under section 7(a)(I) of the ESA have been described as discretionary. 1. Flood Control The Boulder Canyon Project Act of 1928 (December 21, 1928, 45 Stat. 1057; 43 U.S.C. ~ 617) and the Flood Control Act of 1944 (December 22, 1944, 58 Stat. 890; 33 U.S.C. ~ 709) provided for flood control activities in the lower Colorado River. Flood control operations have the first priority on the lower Colorado River as mandated by the Boulder Canyon Project Act:. Section 2(b) of the Boulder Canyon Project Act allocated funds for flood control for the construction of Hoover Dam. Subsequently, section 7 of the Flood Control Act of 1944 established that the Secretary of War (now the Army Corps of Engineers [COE]) will prescribe regulations for flood control for projects authorized, wholly or in part, for such purposes. The Los Angeles District of the COE published the current flood control regulations in the "Water Control Manual for Flood Control Hoover Dam and Lake Mead Colorado River, Nevada and Arizona" dated December 1982. The Field Working Agreement between the COE and Reclamation for the flood control operation of Hoover Dam and Lake Mead, as prescribed by the manual, was signed on February 8, 1984, and is included as Appendix H of this BA. The next review and possible revision of the flood control manual will occur within the next 5 years. Reclamation cannot predict the content of that review or the product thereof; thus those biological impacts will be addressed separately from this document. The process of establishing the flood control regulations encompasses an analysis of the facts and the application of the best available technology. Within that framework, the COE must weigh and balance the various factors and has the responsibility for any discretionary decisions resulting in the flood control regulations. The COE conducts oversight activities when Hoover Dam is in flood operations. The Secretary has no discretion in making the minimum flood control releases from Lake Mead through Hoover Dam during flood control operations. When the required minimum flood control releases are less than the required releases for downstream water uses, the additional increment released to meet those uses is released by the Secretary in his role as Watermaster. 20