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I I I I I I I I I I I I, I I I I I I I OD2332 . the amount water orders are reduced if determined to be within that reasonably required for beneficial use. The discretionary actions associated with the use of Colorado River water relate to non-consumptive water uses for which Reclamation is not severally enjoined. For example, such non-consumptive uses could include, recreation on the reservoirs and the Colorado River, increased flushing flows at Topock Marsh, and fish habitat within or adjacent to the mainstream of the Colorado River (such as Three-Fingers Lake). If any of the activities would have a consumptive use, the party responsible for the use would have to acquire a water entitlement to account for the water consumptively used as required by the Court decree. It should be noted that the restrictions and obligations in the laws and decrees are so encompassing that the Senator Wash re-regulating reservoir was authorized and constructed to help meet the mandatory requirements for water delivery. Similarly, the storage and resultant elevations of Lake Mohave and Lake Havasu are used to re-regulate the local storm waters and last minute changes in water orders. These re-regulations are minuscule compared to the river's total flow and are therefore unmeasurable. However, within very narrow confines, the management of the lake levels of these three facilities may be considered discretionary. On average, 96 percent of the water in the lower basin enters the system at Lee Ferry, and the remaining 4 percent comes from side flows into the system from the rivers or occasional rain flows. According to the Law of the River, this remaining 4 percent becomes Colorado River mainstream water when commingled with the Colorado River or its associated underground water aquifer and is subject to the same restraints. The Secretary's role in the lower Colorado River basin, regarding water storage and the delivery of water apportionments and entitlements throughout the system, is subject to the Law of the River which includes the 1922 Compact, the Boulder Canyon Project Act, the 1964 Supreme Court decree, and contracts, settlement decrees, and applicable Federal and State law. 3. Declaration of Surplus The Secretary, under the powers vested by Congress in Section 5 of the Boulder Canyon Project Act, as confirmed by Section II(B)(2) of the 1964 Decree, has certain discretionary authority to determine when more than 7.5 maf of Colorado River water is available for consumptive use during a calendar year in the three lower Division States; this is a surplus determination. When making this determination, the Secretary must consider all relevant factors as specified in Section III(3)(b) of the long-range operating criteria, including, but not limited to, the following conditions. · Mexican Treaty obligations, 26