                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

GREAT BASIN MINE WATCH, and           
MINERAL POLICY CENTER,
             Plaintiffs-Appellants,
               v.                         No. 04-16125
HELEN HANKINS, UNITED STATES                D.C. No.
DEPARTMENT OF THE INTERIOR, and          CV-02-00605-
BUREAU OF LAND MANAGEMENT,                 HDM/RAM
            Defendants-Appellees,           OPINION
NEWMONT USA LIMITED,
            Defendant-Intervenor-
                         Appellee.
                                      
       Appeal from the United States District Court
                for the District of Nevada
      Howard D. McKibben, District Judge, Presiding

                  Argued and Submitted
       February 14, 2006—San Francisco, California

                   Filed August 1, 2006

  Before: J. Clifford Wallace, Michael Daly Hawkins, and
             Sidney R. Thomas, Circuit Judges.

                Opinion by Judge Wallace;
 Partial Concurrence and Partial Dissent by Judge Thomas




                           8619
            GREAT BASIN MINE WATCH v. HANKINS          8623


                        COUNSEL

Roger Flynn, Jeffrey C. Parsons, Western Mining Action
Project, Boulder, Colorado; Nicole U. Rinke, Western Mining
Action Project, Reno, Nevada, for the plaintiffs-appellants.

Thomas L. Sansonetti, Andrew Mergen, John E. Arbab, Dept.
of Justice, Washington, D.C., for the defendants-appellees.

Scott W. Hardt, Temkin Wielga & Hardt LLP, Denver, Colo-
rado, for the intervenor-appellee.


                        OPINION

WALLACE, Circuit Judge:

  Great Basin Mine Watch and the Mineral Policy Center
(collectively, Great Basin) appeal from the district court’s
8624         GREAT BASIN MINE WATCH v. HANKINS
summary judgment on their claims against the United States
Department of the Interior and the Bureau of Land Manage-
ment (collectively, Bureau). Great Basin alleged that the
Bureau’s approval of two gold mining permits to the New-
mont Mining Corporation (Newmont) violated, inter alia, the
National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4312, and the Administrative Procedure Act (APA), 5
U.S.C. §§ 704-706. Newmont appears as an intervenor in this
appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We affirm in part, reverse in part, and remand.

                               I.

   In March 1997, Newmont submitted a plan proposing
expansion of Newmont’s existing open-pit gold mining and
ore processing facilities to the Elko Field Office of the
Bureau. The proposed expansion was to be located at New-
mont’s South Operations Area Project, which was approved
in 1993, approximately six miles northwest of Carlin, Nevada.
The expansion was to be known as the South Operations Area
Project Amendment (Amended South Project) and was esti-
mated to result in a total additional disturbance of 1,392 acres
of land, 839 of which are public. Amended South Project was
intended to deepen the existing Gold Quarry Mine, to con-
tinue dewatering the mine, and to continue discharging excess
groundwater into Maggie Creek, a creek located near the
mine.

  Pursuant to NEPA, the Bureau concluded that Amended
South Project could cause a significant environmental impact
and ordered the preparation of an environmental impact state-
ment (EIS). The Bureau released a draft EIS in September
2000, and issued a final EIS in April 2002. In April 2002, the
Bureau also released the “Cumulative Impact Analysis of
Dewatering and Water Management Operations for the Betze
Project, South Operations Area Project Amendment, and
Leeville Project,” a technical report detailing the hydrological
             GREAT BASIN MINE WATCH v. HANKINS           8625
effects of three proposed and existing mining projects in the
region.

   The Bureau issued a Record of Decision for Amended
South Project in July 2002. The Decision chose an alternative
to Newmont’s plan, consisting of Newmont’s Amended South
Project proposal and an amended version of the 1993 South
Project mitigation plan. The Decision found that the revised
agency-preferred alternative would not “cause unnecessary or
undue degradation of the public lands, and [would] not cause
any unacceptable conflict with other significant resources in
the area.”

   Pursuant to its regulations, the Bureau directed Newmont to
post an incremental bond of $19,753,284 for the first phase of
Amended South Project, which called for the expansion of a
waste rock disposal facility, a $3,000,000 bond for possible
stream flow augmentation, and a $465,000 bond for ground-
water and surface water monitoring. Pursuant to the Bureau’s
regulations, Newmont would have to post further phased
bonds before going ahead with other activities.

   Meanwhile, in April 1997, one month after submitting the
Amended South Project proposal, Newmont submitted a pro-
posal for the Leeville Project (Leeville), a proposed under-
ground gold mine located twenty miles northwest of Carlin.
The plan, which like the Amended South Project was submit-
ted to the Elko Field Office, called for construction of five
shafts to depths of approximately 2,500 feet to access three
main bodies of ore and for construction of ancillary mine
facilities. The proposal was estimated to result in a distur-
bance of 486 acres of land, 453 of which are public. Refrac-
tory ore produced from Leeville was to be hauled by truck
and processed at an existing mill located at the South Opera-
tions Area.

  The Bureau determined that the Leeville proposal could
potentially have a significant environmental impact and pre-
8626         GREAT BASIN MINE WATCH v. HANKINS
pared an EIS. The Bureau released a draft EIS in March 2002,
and a final EIS in July 2002. The April 2000 Cumulative
Impacts Analysis was “used as a foundation for the cumula-
tive impacts analyses” with regard to Leeville.

   The Bureau issued a Record of Decision for Leeville in
September 2002. The Leeville Decision selected the agency-
preferred alternative, which modified the Leeville proposal
and implemented a mitigation plan. As with the Amended
South Project Decision, the Leeville mitigation plan was an
extension of the 1993 South Project mitigation plan and
mainly addressed impacts related to dewatering. The Bureau
found that implementation of the agency-preferred alternative
and the Leeville mitigation plan would not “cause unneces-
sary or undue degradation of the public lands and [would] not
cause any unacceptable conflict with other significant
resources in the area.” The Bureau ordered Newmont to pro-
vide a bond of $4,974,200 for post-mine closure reclamation,
and a bond of $875,700 for groundwater and surface water
monitoring.

   Two months later, Great Basin filed an action in the district
court against the Bureau of Land Management, the Depart-
ment of the Interior, and Helen Hankins, the manager of the
Bureau’s Elko Field Office. The complaint sought judicial
review of the final EISs, the Decisions, and the bonding deter-
minations, asserting claims under federal statutes including
NEPA and the APA. Newmont intervened as a defendant. The
parties filed cross-motions for summary judgment. Before the
district court acted on the motions, Great Basin sought to
introduce an extra-record document from the Nevada Division
of Environmental Protection. According to Great Basin, this
document was relevant as to whether Amended South Project
and Leeville were connected actions that should have been
evaluated in a single EIS. The district court refused to admit
the document or to take judicial notice of the facts contained
in the document.
             GREAT BASIN MINE WATCH v. HANKINS             8627
  The district court entered summary judgment in favor of
defendants on all claims.

                              II.

   We review the summary judgment de novo. Hall v. Norton,
266 F.3d 969, 975 (9th Cir. 2001). As this is a record review
case, “we may direct that summary judgment be granted to
either party based upon our de novo review of the administra-
tive record.” Lands Council v. Powell, 395 F.3d 1019, 1026
(9th Cir. 2005) (as amended). The district court’s determina-
tion as to whether an EIS satisfies the requirements of NEPA
is a question of law reviewed de novo. City of Carmel-by-the-
Sea v. U.S. Dep’t of Transp., 123 F.3d 1142, 1150 (9th Cir.
1997). Whether a plaintiff has exhausted required administra-
tive remedies is a question of law reviewed de novo. See
Bankston v. White, 345 F.3d 768, 770 (9th Cir. 2003).

   Judicial review of agency decisions under NEPA, the Clean
Water Act, and the Federal Land Policy Management Act
(Management Act) is governed by the APA, which dictates
that an agency action may be overturned only where it was
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A); see Marsh v.
Or. Natural Res. Council, 490 U.S. 360, 377 (1989) (applying
arbitrary and capricious standard to the adequacy of an EIS
under NEPA); Native Ecosystems Council v. Dombeck, 304
F.3d 886, 891 (9th Cir. 2002) (applying arbitrary and capri-
cious standard to NEPA claims); Idaho Sporting Congress v.
Thomas, 137 F.3d 1146, 1149 (9th Cir. 1998) (applying arbi-
trary and capricious standard to Clean Water Act claims).

   In determining whether a decision is arbitrary and capri-
cious, we will “consider whether the decision was based on
a consideration of the relevant factors and whether there has
been a clear error of judgment.” Thomas, 137 F.3d at 1149,
quoting Marsh, 490 U.S. at 378. We must also ensure that the
agency “took a hard look at the environmental consequences
8628         GREAT BASIN MINE WATCH v. HANKINS
of its action.” Northwest Resource Info. Ctr., Inc. v. Nat’l
Marine Fisheries Serv., 56 F.3d 1060, 1066 (9th Cir. 1995)
(internal quotations and citations omitted). However, we may
reverse under the arbitrary and capricious standard only if the
agency has relied on factors Congress has not intended it to
consider, entirely failed to consider an important aspect of the
problem, offered “an explanation [for its decision] that runs
counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.” Sierra Club v. EPA, 346 F.3d
955, 961 (9th Cir. 2003) (noting standard), amended by 352
F.3d 1186 (9th Cir. 2003).

  We review the district court’s decision whether to admit
extra-record evidence for an abuse of discretion. Southwest
Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d
1443, 1447 (9th Cir. 1996).

                              III.

   In 1972, Congress passed the Clean Water Act to create a
comprehensive national system of regulation of water pollu-
tion, in which the federal government and the states share
responsibilities. See 33 U.S.C. §§ 1251-1376. There are two
general types of standards under the Act: effluent standards,
which limit the quantity of pollutants discharged from a
source; and ambient water quality standards, which limit con-
centrations of pollutants in a stream. The administration of
these standards is left to the states, which are free to impose
stricter regulations than those required by federal law.

   Great Basin contends that the Bureau violated the Clean
Water Act and the Management Act by failing to ensure com-
pliance with water quality standards in two ways: first,
because the potential “drying effect” indicates that the Bureau
failed to maintain “all beneficial uses” of the water, and sec-
ond, because the discharges of pumped groundwater will vio-
late water quality standards. The district court granted
             GREAT BASIN MINE WATCH v. HANKINS               8629
summary judgment on the first claim because “[t]he relation-
ship between water flow and aquatic life is a question of fact
that lies within the technical expertise of the agency.” The
district court declined to reach the second claim because it
held that Great Basin had not presented it adequately to the
Bureau in the first instance.

  A.   Potential “Drying Effect”

   Great Basin argues that the Bureau’s approval of Leeville
and Amended South Project violates the Clean Water Act, the
Management Act, and the Bureau’s own mining regulations,
see 43 C.F.R. § 3809, because the projects will extend the
periods during which existing springs and streams are dry.
This, Great Basin contends, would violate federal and state
requirements under the Clean Water Act that beneficial uses
of waterways be maintained, and would also implicate the
Act’s “antidegradation” requirements. While the district court
dismissed the claim as a question of fact lying within the tech-
nical expertise of the agency, we do not reach the factual basis
of the claim and hold that it fails as a matter of law.

   [1] It is clear that the Clean Water Act does not supersede,
abrogate, or otherwise impair “the authority of each state to
allocate quantities of water within its jurisdiction.” 33 U.S.C.
§ 1251(g). States are responsible for enforcing water quality
standards on intrastate waters. See 33 U.S.C. § 1319(a). Sec-
tion 401 of the statute “requires States to provide a water
quality certification before a federal license or permit can be
issued for activities that may result in any discharge into intra-
state navigable waters.” PUD No. 1 of Jefferson Cty. v. Wash.
Dep’t of Ecology, 511 U.S. 700, 707 (1994), citing 33 U.S.C.
§ 1341.

   Great Basin places heavy weight on PUD No. 1, arguing
that the case requires the Bureau to ensure that a mine opera-
tor will maintain a minimum level of stream flow before the
Bureau may approve a project. In PUD No. 1, the Supreme
8630         GREAT BASIN MINE WATCH v. HANKINS
Court held that the State of Washington could regulate stream
flow and water quantity under its Clean Water Act authority.
Great Basin points to the Supreme Court’s holding that the
Clean Water Act’s definition of pollution “encompasses the
effects of reduced water quantity.” Id. at 719.

   [2] However, PUD No. 1 does not help Great Basin. PUD
No. 1 merely holds that states may set minimum flow stan-
dards as part of section 401 certification requirements; it does
not hold that states must do so. In the absence of state law to
the contrary, water withdrawals are not subject to the require-
ments of the Clean Water Act.

    Other circuits have interpreted the Clean Water Act in the
same way. In North Carolina v. FERC, 112 F.3d 1175 (D.C.
Cir. 1997), the D.C. Circuit reached the same conclusion in
holding that the withdrawal of water from a lake did not trig-
ger the provisions of section 401. “[N]either the withdrawal of
water from the Lake nor the reduction in the volume of water
. . . ‘results in a discharge’ for purposes of Section 401(a)(1).
. . . [T]he word ‘discharge’ contemplates the addition, not the
withdrawal, of a substance or substances.” Id. at 1187. Simi-
larly, in Save our Community v. EPA, 971 F.2d 1155 (5th Cir.
1992), the Fifth Circuit held that the draining of wetland did
not fall under Section 404 of the Clean Water Act: “We must
conclude that without the existence of an effluent discharge of
some kind, there is no coverage under section 404. There is
no jurisdiction for the agencies or the courts to act.” Id. at
1164. The District of Colorado, in a case with similar facts,
reached the same conclusion: “under Colorado law, water
quality standards apply only to discharges of pollution and not
to withdrawals or appropriations of water. . . . The withdrawal
of water is not a discharge of pollution under the CWA.”
Colo. Wild, Inc. v. U.S. Forest Serv., 122 F. Supp. 2d 1190,
1193 (D. Colo. 2000).

   The Supreme Court’s recent decision in S.D. Warren Co.
v. Maine Board of Environmental Protection, 126 S. Ct. 1843
             GREAT BASIN MINE WATCH v. HANKINS             8631
(2006), is not to the contrary. There, the Court held that the
release of water from a hydroelectric dam constituted a “dis-
charge” into navigable waters that is subject to state water
quality certification under Section 401 of the Clean Water
Act. However, contrary to Great Basin’s assertions, the Court
did not address whether individual states are required to regu-
late withdrawal of water under the Act. Rather, S.D. Warren
Co. reiterates that individual states have the responsibility of
regulating water pollution and water use. See id. at 1853
(“Changes in the river like these fall within a State’s legiti-
mate legislative business, and the Clean Water Act provides
for a system that respects the States’ concerns”).

   [3] With this in mind, our next step is to determine whether
Nevada law subjects withdrawal of water to the standards of
the Clean Water Act, as it is permitted to do under PUD No.
1. Nevada statutory law creates different regimes for dis-
charge of pollutants and dewatering. Discharge of pollutants
is governed by the Nevada Water Pollution Control Law,
Nev. Rev. Stat. § 445A.300-.730 (2006). The statute requires
those seeking to discharge pollutants to obtain a permit from
the Nevada state department of conservation and natural
resources. Nev. Rev. Stat. § 445A.500 (2006). However,
appropriation of water, including dewatering, is governed by
a different statute, which maintains that any person wishing
to appropriate or divert underground water should apply to the
Nevada state engineer for a permit, and specifically refers to
the use of water in “exploring for oil, gas, minerals or geo-
thermal resources.” Nev. Rev. Stat. § 534.050; 534.120. The
Water Pollution Control Law also states that nothing in the
law “shall be construed to amend, modify or supersede the
provisions of [the water appropriation statutes] or any rule,
regulation or order promulgated or issued thereunder by the
state engineer.” Nev. Rev. Stat. § 445A.725 (2006). Because
the quality of discharged water and the quantity of appropri-
ated water are governed by different laws and subject to dif-
ferent permits, it is clear that Nevada does not regulate
dewatering under its Clean Water Act authority.
8632         GREAT BASIN MINE WATCH v. HANKINS
   [4] Great Basin’s claims under the Clean Water Act’s anti-
degradation provision and under the Management Act are
equally untenable. The anti-degradation policy only refers to
water quality standards and does not refer to water with-
drawal. See 33 U.S.C. § 1313(d)(4). The Nevada anti-
degradation provision, similarly, only refers to water quality.
Nev. Rev. Stat. § 445A.565. As discussed above, the Nevada
statutory regime clearly separates withdrawal of water from
pollution of water, and the water pollution regime, including
the anti-degradation statute, is defined so as not to supersede
the water allocation regime. Thus, because Nevada does not
regulate water withdrawal in the same regime as water qual-
ity, the Clean Water Act’s anti-degradation provision is inap-
plicable.

  The Management Act requires the government to “take any
action necessary to prevent unnecessary or undue degradation
of the lands.” 43 U.S.C. § 1732(b). However, the Act also
provides:

    Nothing in this Act shall be construed as limiting or
    restricting the power and authority of the United
    States or —

         (1) as affecting in any way any law gov-
         erning appropriation or use of, or Federal
         right to, water on public lands;

         (2) as expanding or diminishing Federal or
         State jurisdiction, responsibility, interests,
         or rights in water resources development or
         control.

43 U.S.C.A. § 1701, hist. note (g) (2006). We interpret this to
mean that the Management Act does not expand the require-
ments of the Clean Water Act.

  [5] Therefore, Great Basin’s arguments regarding the
potential “drying effect” are untenable as a matter of law.
              GREAT BASIN MINE WATCH v. HANKINS               8633
  B.     Discharged Groundwater

   Great Basin next argues that the groundwater discharged
from Amended South Project into Maggie Creek will violate
federal and state water quality requirements. The district court
ruled that the plaintiffs had not properly raised these argu-
ments before the Bureau.

    1.    Exhaustion

   The APA requires that plaintiffs exhaust administrative
remedies before bringing suit in federal court. 5 U.S.C. § 704.
This requirement applies to claims under NEPA. “Persons
challenging an agency’s compliance with NEPA must struc-
ture their participation so that it . . . alerts the agency to the
parties’ position and contentions, in order to allow the agency
to give the issue meaningful consideration.” Dep’t of Transp.
v. Pub. Citizen, 541 U.S. 752, 764 (2004) (internal punctua-
tion omitted), quoting Vermont Yankee Nuclear Power Corp.
v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978).

   We considered the degree to which parties must raise envi-
ronmental claims before the agency in Native Ecosystems
Council. There, we allowed the plaintiffs to raise arguments
before us where they “presented a much less refined legal
argument in their administrative appeal.” 304 F.3d at 898. We
defined the exhaustion requirement broadly: “The plaintiffs
have exhausted their administrative appeals if the appeal,
taken as a whole, provided sufficient notice to the [agency] to
afford it the opportunity to rectify the violations that the plain-
tiffs alleged.” Id. at 899. This, we held, comported with the
purposes of the exhaustion requirement: “avoiding premature
claims and ensuring that the agency be given a chance to
bring its expertise to bear to resolve a claim.” Id. at 900. “Re-
quiring more might unduly burden those who pursue adminis-
trative appeals unrepresented by counsel, who may frame
their claims in non-legal terms rather than precise legal for-
mulations.” Id. We have continued to use this analysis in sub-
8634         GREAT BASIN MINE WATCH v. HANKINS
sequent cases. See, e.g., Idaho Sporting Congress, Inc. v.
Rittenhouse, 305 F.3d 957, 965 (9th Cir. 2002).

   [6] Applying this standard, we conclude that the Bureau
was on notice that Great Basin took issue with the groundwa-
ter discharged into Maggie Creek. In its comment letter to the
Bureau on the Amended South Project draft EIS, Great Basin
wrote: “The [Amended South Project] indicates that ground-
water released into Maggie Creek does not need to be treated,
since the combined discharged water does not exceed the
water quality standards established by the NPDES system. . . .
This statement is different than saying that no impacts will
occur. What are the water quality measurements in the Creek
and in the discharged water? Are arsenic or TDS amounts
increased over what exists naturally in Maggie Creek? Does
the total amount of contaminants discharged add a significant
amount to the total loads in the Humboldt River down-
stream?”

   Under our case law, this was sufficient to preserve the
claim for judicial review. Great Basin clearly expressed con-
cern about the current and future levels of toxins in the dis-
charged water, and the Bureau was on notice of these
concerns.

  [7] The district court’s conclusion that this argument was
unexhausted was in error. Accordingly, we proceed to the
merits.

    2.   Merits

   The Environmental Protection Agency and the states are
responsible for administering the Clean Water Act. Possible
water pollution clearly comes within the ambit of the Clean
Water Act. See 33 U.S.C. § 1341.

  [8] Newmont obtained a water pollution permit from the
Nevada Division of Environmental Protection (NDEP), which
             GREAT BASIN MINE WATCH v. HANKINS                8635
is responsible for regulating the discharge of pollutants into
state waters. Great Basin’s argument is based on a table
attached to the Amended South Project EIS, which details the
quality of the water discharged from Newmont between 1994
and 1998. According to Great Basin, the table shows that the
groundwater pumped from Amended South Project has
exceeded water quality standards and the limitations of New-
mont’s permit. The table belies Great Basin’s argument.
 While it is true that the level of pollutants occasionally
exceeded those allowed by Newmont’s permit, the discharge
was generally within the range allowed. The only measure-
ment that was frequently out of line was for total dissolved
solids. The thirty-day average for total dissolved solids was,
however, well under the NDEP’s permit’s daily maximum.

  Following the Clean Water Act’s stricture that states should
enforce water quality standards, the Bureau repeatedly told
Newmont that it had to obtain a permit from NDEP before
Newmont could discharge any pollutants. The Bureau
reviewed the table and decided that “[t]he mine discharge has
been generally within its permit limitations; no significant
non-compliance has been found.”

  [9] Great Basin cites no law to demonstrate that the
Bureau’s analysis of the data was arbitrary or capricious, or,
indeed, even incorrect. We therefore affirm the summary
judgment on this claim.

                             IV.

  In 1926, President Calvin Coolidge created Public Water
Reserve No. 107 (No. 107) by executive order. It provides:

    It is hereby ordered that every smallest legal subdivi-
    sion of public land surveys which is vacant, unap-
    propriated, unreserved public land and contains a
    spring or water hole, and all land within one quarter
    of a mile of every spring or water hole located on
8636         GREAT BASIN MINE WATCH v. HANKINS
    unsurveyed public land, be and the same is hereby
    withdrawn from settlement, location, sale or entry,
    and reserved for public use in accordance with the
    provisions of Section 10 of the Act of December 29,
    1916.

See United States v. Idaho, 959 P.2d 449, 451 (Idaho 1998).
According to one court, “[t]he purpose of the reservation was
to prevent monopolization of water needed for domestic and
stock watering purposes.” United States v. City & County of
Denver, 656 P.2d 1, 32 (Colo. 1983); see also Idaho, 959 P.2d
at 453 (“The purpose of PWR 107 was to prevent the monop-
olization by private individuals of springs and waterholes on
public lands needed for stockwatering”).

   Great Basin argued in the district court that the Bureau’s
approval of the mining plans would reduce and eliminate
springs and waterholes in the region, thus causing the plans
to violate No. 107. The district court held that Great Basin
could not raise this claim because it was not raised before the
Bureau.

  A.   Standing

   As a preliminary matter, Newmont argues that Great Basin
lacks constitutional and prudential standing to raise the No.
107 claim, because Great Basin’s members have suffered no
injury-in fact and their interests do not fall within the “zone
of interest” that No. 107 was designed to protect.

   “[E]nvironmental plaintiffs adequately allege injury in fact
when they aver that they use the affected area and are persons
for whom the aesthetic and recreational values of the area will
be lessened by the challenged activity.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 183 (2000) (inter-
nal quotations omitted). Great Basin has submitted declara-
tions from its members that detail the injury that the
dewatering of the springs will cause to their recreational lives.
             GREAT BASIN MINE WATCH v. HANKINS               8637
For example, Daniel Randolph, a member of Great Basin,
stated that he has “spent a great deal of time in northern
Nevada, hiking, camping, swimming, and taking pictures. A
portion of that time has been spent in the area that will be
affected by the [Amended South Project] and Leeville.” He
went on to detail several occasions when he participated in
recreational activities on the land in question. Furthermore,
the injury complained of would not occur if the mining proj-
ects were not approved, and an injunction would provide
complete relief. The members of Great Basin have alleged
injury-in-fact, causation, and redressability. Great Basin has
Article III standing.

   With regards to prudential standing, the “zone of interest”
test is not particularly stringent. The Supreme Court has held
that “[t]he proper inquiry is simply whether the interest
sought to be protected by the complainant is arguably within
the zone of interests to be protected . . . by the statute.” Nat’l
Credit Union Admin. v. First Nat’l Bank & Trust Co., 522
U.S. 479, 492 (1998) (internal quotations omitted) (emphasis
in original). The plaintiffs’ declarations specifically state that
“[m]embers of GBMW . . . utilize springs and waterholes on
federal public land in Nevada for stockwatering and other
water-related purposes.” This is sufficient to fall within the
zone of interest.

  [10] We conclude that Great Basin has standing to raise the
No. 107 claim.

  B.   Exhaustion

   Great Basin admits that it did not mention No. 107 by name
in the proceedings before the Bureau, but argues that the
Bureau was on notice that the public was concerned about the
loss of these public water reserves. The district court held that
Great Basin had failed to raise the claim before the Bureau,
citing Vermont Yankee Power Corp.: “[A]dministrative pro-
ceedings should not be a game or a forum to engage in unjus-
8638         GREAT BASIN MINE WATCH v. HANKINS
tified obstructionism by making cryptic and obscure reference
to matters that ‘ought to be’ considered and then, after failing
to do more to bring the matter to the agency’s attention, seek-
ing to have that agency determination vacated on the ground
that the agency failed to consider matters ‘forcefully pre-
sented.’ ” 435 U.S. at 553-54.

  [11] We have held that “claimants who bring administrative
appeals may try to resolve their difficulties by alerting the
decision maker to the problem in general terms, rather than
using precise legal formulations.” Rittenhouse, 305 F.3d at
965. However, in this case we conclude that the connection
between No. 107 and the concerns raised is too attenuated.
Great Basin made general comments about groundwater,
springs, and seeps. These comments in no way suggest an
argument that the Bureau failed to protect federally-reserved
water rights under an eighty-year-old Executive Order.

   [12] The district court correctly held that Great Basin’s
claims under No. 107 were not exhausted.

                               V.

   Great Basin next argues that the Bureau violated NEPA by
not evaluating Leeville and the Amended South Project in a
single environmental impact statement. Great Basin argues
that the Amended South Project and Leeville are connected
actions and thus must have been evaluated together. The dis-
trict court held that the argument was unexhausted because
Great Basin failed to raise it before the Bureau. In the alterna-
tive, the district court held that the plaintiffs had failed to
establish that the actions were connected.

  A.   Exhaustion

  In their comments on the final EIS, the plaintiffs stated,
with regard to tailings generated by Leeville and the
Amended South Project, that “it is essential to consider the
             GREAT BASIN MINE WATCH v. HANKINS              8639
South Operations Area and the Leeville as linked projects.”
The district court found this insufficient because the “com-
ment mentions the tailings, but nothing else. It does not men-
tion the ore, sludge, or waste water, and it does not mention
any of the adjacent mines.”

   “Claims must be raised with sufficient clarity to allow the
decision maker to understand and rule on the issue raised, but
there is no bright-line standard as to when this requirement
has been met and we must consider exhaustion arguments on
a case-by-case basis.” Rittenhouse, 305 F.3d at 965. Our
review of the record indicates that Great Basin adequately
raised the issue of connected actions. “The plaintiffs have
exhausted their administrative appeals if the appeal, taken as
a whole, provided sufficient notice . . . to afford [the agency]
the opportunity to rectify the violations that the plaintiffs
alleged.” Native Ecosystems Council, 304 F.3d at 899. While
the plaintiffs here did not cite to the requisite federal regula-
tion, they “clearly expressed concern” that the projects were
linked. Rittenhouse, 305 F.3d at 966.

   [13] Additionally, the record indicates that the Bureau was
on notice that the actions might appear to be connected. In its
response to the plaintiffs’ request for judicial notice, the
Bureau stated that “it did consider the environmental issue
implicated by this document in detail: whether the challenged
mining proposals were sufficiently dependent or independent
to either have or lack an independent purpose.” “Because
plaintiffs raised the issue . . . sufficiently for the agency to
review these procedures . . . , we hold that the plaintiffs
exhausted their administrative remedies . . . .” Native Eco-
systems Council, 304 F.3d at 899-900; see also Northwest
Resource Info. Ctr., 56 F.3d at 1067 (“[T]he Corps was well-
aware of the criticisms of the scope of the SEIS before, dur-
ing, and after the . . . process”).

  B.   Merits

  NEPA “requires a federal agency to prepare an EIS for all
‘major Federal actions significantly affecting the quality of
8640          GREAT BASIN MINE WATCH v. HANKINS
the human environment.’ ” Wetlands Action Network v. U.S.
Army Corps of Eng’rs, 222 F.3d 1105, 1115 (9th Cir. 2000),
quoting 42 U.S.C. § 4332(2)(C). The Council on Environmen-
tal Quality’s implementing regulation of NEPA requires,
regarding the scope of an EIS:

    The scope of an individual statement may depend on
    its relationships to other statements. To determine
    the scope of environmental impact statements, agen-
    cies shall consider 3 types of actions, 3 types of
    alternatives, and 3 types of impacts. They include:

        (a)    Actions (other than unconnected sin-
               gle actions) which may be:

          (1)       Connected actions, which means
                    that they are closely related and
                    therefore should be discussed in the
                    same impact statement. Actions are
                    connected if they:

              (i)     Automatically   trigger   other
                      actions which may require envi-
                      ronmental impact statements.

              (ii)     Cannot or will not proceed
                       unless other actions are taken
                       previously or simultaneously.

              (iii)    Are interdependent parts of a
                       larger action and depend on the
                       larger action for their justifica-
                       tion.

          (2)       Cumulative actions, which when
                    viewed with other proposed actions
                    have    cumulatively    significant
                    impacts and should therefore be
             GREAT BASIN MINE WATCH v. HANKINS           8641
                 discussed in the same impact state-
                 ment.

           (3)   Similar actions, which when
                 viewed with other reasonably fore-
                 seeable or proposed agency actions,
                 have similarities that provide a
                 basis for evaluating their environ-
                 mental consequences together, such
                 as common timing or geography.
                 An agency may wish to analyze
                 these actions in the same impact
                 statement. It should do so when the
                 best way to assess adequately the
                 combined impacts of similar actions
                 or reasonable alternatives to such
                 actions is to treat them in a single
                 impact statement.

40 C.F.R. § 1508.25 (citations omitted).

   The purpose of this requirement is “to prevent an agency
from dividing a project into multiple ‘actions,’ each of which
individually has an insignificant environmental impact, but
which collectively have a substantial impact.” Wetlands
Action Network, 222 F.3d at 1118 (internal quotations and
citation omitted). Where, as here, the agency declines to pro-
duce a single EIS, “plaintiffs must show that the [agency] was
arbitrary and capricious in failing to prepare one comprehen-
sive environmental statement.” Native Ecosystems Council,
304 F.3d at 894, citing Kleppe v. Sierra Club, 427 U.S. 390,
412 (1976).

   [14] We apply an “independent utility” test to determine
whether multiple actions are so connected as to mandate con-
sideration in a single EIS. The crux of the test is whether
“each of two projects would have taken place with or without
the other and thus had ‘independent utility.’ ” Wetlands
8642         GREAT BASIN MINE WATCH v. HANKINS
Action Network, 222 F.3d at 1118 (internal quotations and
citation omitted). When one of the projects might reasonably
have been completed without the existence of the other, the
two projects have independent utility and are not “connected”
for NEPA’s purposes. Native Ecosystems Council, 304 F.3d
at 894.

   In Blue Mountains Biodiversity Project v. Blackwood, 161
F.3d 1208, 1215 (9th Cir. 1998), we held that five potential
logging projects in the same watershed were cumulative and
had to be evaluated in a single EIS, where they were reason-
ably foreseeable and “developed as part of a comprehensive
forest recovery strategy.” Similarly, in Thomas v. Peterson,
753 F.2d 754, 758 (9th Cir. 1985), we held that a logging
project and a road to facilitate the logging had to be consid-
ered in a single EIS because “the timber sales [could not] pro-
ceed without the road, and the road would not be built but for
the contemplated timber sales.”

   We have held that less-interconnected projects need not be
evaluated in the same EIS. In Wetlands, we held that a joint
EIS was not required where details and planning for subse-
quent phases of development had not been completed or
authorized. “Finding that the Corps was required . . . to have
analyzed the environmental impacts of the three phases in a
single EA or EIS would require the government to do the
impractical.” 222 F.3d at 1119. In Sylvester v. U.S. Army
Corps of Eng’rs, 884 F.2d 394, 400 (9th Cir. 1989), we
declined to require a single EIS covering both a resort com-
plex and a golf course, where only the golf course (built on
wetlands) implicated federal law. “[E]ach could exist without
the other, although each would benefit from the other’s pres-
ence.” Id.

   Great Basin points to several statements in the EISs to
argue that Leeville and the Amended South Project are con-
nected actions. “The Leeville Project ore deposits consist of
refractory material that would be hauled directly to processing
               GREAT BASIN MINE WATCH v. HANKINS                  8643
facilities located at the Refractory Ore Treatment Plant at
Newmont’s South Operations Area.” In addition, “[t]ailing
material that would result from processing of the Leeville
Project ore would be managed at Newmont’s tailing disposal
facility in the South Operations Area.” The Leeville draft EIS
also contained a diagram showing that all ore from Leeville
would be processed at the South Operations Area. Great Basin
does not argue that the Amended South Project is dependent
on Leeville.

   [15] While it is true that the ore from Leeville will be pro-
cessed at the South Operations Area, there is no indication
that the ore will be processed at the Amended South Project,
the new facilities at issue in this litigation. In fact, the Leeville
draft EIS specifically states that “[t]ailing from processing
Leeville ore at South Operations Area would be deposited in
existing tailing disposal facilities. Modification or expansion
of the tailing disposal facility beyond the current authorized
capacity would not be required to process ore from the
Leeville Project.” Ore from Leeville is to be processed at
Mill 6, which was permitted by the Bureau to existing capac-
ity in 1993. Leeville and the Amended South Project seem to
have very little connectedness.

   [16] “Mindful of the deference that agencies are to be
accorded in scientific matters, in these circumstances we
decline at this time to require the BLM to produce a single
document.” Klamath-Siskiyou Wildlands Ctr. v. Bureau of
Land Mgmt., 387 F.3d 989, 1000 (9th Cir. 2004). In this situa-
tion, we go even further: there is no factual support for Great
Basin’s argument that Leeville and the Amended South Proj-
ect are interdependent such that they must be evaluated in a
joint environmental impact statement. It follows that the
Bureau’s failure to do so was not arbitrary or capricious.1
  1
   In arguing that the Bureau should have evaluated Leeville and
Amended South Project in a single EIS, the separate concurrence and dis-
sent concludes that “[i]t would be not merely unwise, but also entirely
8644            GREAT BASIN MINE WATCH v. HANKINS
                                    VI.

   Great Basin argues that the Bureau’s cumulative impact
analysis was inadequate under NEPA. The district court held
that Great Basin had failed to raise these claims adequately
before the Bureau. In the alternative, the district court held
that the Bureau had “comprehensively considered the proj-
ect’s potential cumulative impacts” and rejected Great Basin’s
argument. “Whether a particular deficiency, or combination
of deficiencies, in an EIS is sufficient to warrant holding it
legally inadequate, or constitutes merely a ‘fly-speck,’ is
essentially a legal question, reviewable de novo.” Churchill
County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001) (quo-
tation omitted).

  A.    Exhaustion

  According to the district court, “the record reflects that
Plaintiffs failed to raise these issues before the administrative

irrational to proceed with the mining of Leeville in the absence of avail-
able processing facilities.” This fails to acknowledge that Leeville’s ore is
to be processed in existing facilities whose operations have not been chal-
lenged in this action. According to the record, Leeville could be mined
regardless of whether the South Operations Area Project is ever expanded.
   Here, the Leeville Draft EIS states that the ore brought to the surface
“would be hauled directly to processing facilities at the Refractory Ore
Treatment Plant (Mill #6) located at Newmont’s South Operations Area.”
There is no allegation that Mill #6 is to be expanded in any way by
Amended South Project. Similarly, it is clear that tailings from Leeville
are to be deposited at the existing facility. Put simply, Great Basin points
to no evidence that the Leeville mine will use the expanded portion of the
South Operations Area in any way.
  Accordingly, the Amended South Project and Leeville fail the “indepen-
dent utility” test. See Wetlands Action Network, 222 F.3d at 1118. There
was no need to evaluate the projects in a single EIS. “[E]ach could exist
without the other, although each would benefit from the other’s presence.”
Sylvester, 884 F.2d at 400. The conclusion of the separate opinion to the
contrary is supported by neither our caselaw nor the record.
             GREAT BASIN MINE WATCH v. HANKINS             8645
agencies.” However, in comments submitted on the Amended
South Project draft EIS, the Mineral Policy Center argued that
the cumulative impacts analysis was inadequate: “There are
numerous large operating gold mines in the region that must
also be fully considered in a regional comprehensive impact
analysis.” The Bureau responded that it had indeed identified
all the known or reasonably foreseeable projects. Addition-
ally, many other comments raised cumulative impacts issues.
For example, the EPA commented on the inadequacy of the
air pollution analysis within the cumulative impacts analysis.
Other public comments expressed concern with the cumula-
tive impacts analysis.

   We have held that there is no “broad rule which would
require participation in agency proceedings as a condition pre-
cedent to seeking judicial review of an agency decision.”
Northwest Envtl Def. Ctr. v. Bonneville Power Admin., 117
F.3d 1520, 1534-35 (9th Cir. 1997), quoting Kunaknana v.
Clark, 742 F.2d 1145, 1148 (9th Cir. 1984). We hold that, in
this case, the comments were sufficient “to allow the agency
to give the issue meaningful consideration.” Public Citizen,
541 U.S. at 764 (internal punctuation and citation omitted).
We thus reach the merits of Great Basin’s claim.

  B.   Merits

   A cumulative impact is defined in NEPA’s implementing
regulations as “the impact on the environment which results
from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions . . . .
Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of
time.” 40 C.F.R. § 1508.7. We have held that “[a] proper con-
sideration of the cumulative impacts of a project requires
some quantified or detailed information; general statements
about possible effects and some risk do not constitute a hard
look absent a justification regarding why more definitive
information could not be provided.” Klamath-Siskiyou Wild-
8646         GREAT BASIN MINE WATCH v. HANKINS
lands Ctr., 387 F.3d at 993 (emphasis added) (internal quota-
tions and citations omitted). “The analysis must be more than
perfunctory; it must provide a useful analysis of the cumula-
tive impacts of past, present, and future projects.” Id. at 994
(internal quotations and citations omitted). “Defendants must
do more than just catalogue ‘relevant past projects in the
area.’ ” Churchill County, 276 F.3d at 1080, quoting City of
Carmel-by-the-Sea, 123 F.3d at 1160. “[I]n assessing cumula-
tive effects, the Environmental Impact Statement must give a
sufficiently detailed catalogue of past, present, and future
projects, and provide adequate analysis about how these proj-
ects, and difference between the projects, are thought to have
impacted the environment.” Lands Council, 395 F.3d at 1028.

   Great Basin argues that the final EISs do not adequately
review the environmental impacts from the other past, pres-
ent, and reasonably foreseeable projects in the area because
they merely list other mines in the area without detailing
impacts from each one. In addition to this general concern,
Great Basin argues that the cumulative impacts analysis is
infirm in three specific ways: first, that the final EISs fail to
address the impacts from Newmont’s Pete Project and North
Operations, and from Barrick Corporation’s Betze/Post mine;
second, that the Leeville final EIS fails to analyze the cumula-
tive impacts from disposal of sludge both at Leeville and at
the other area mines; and third, that the Leeville final EIS fails
to review environmental impacts from disposal of Leeville
wastewater at the Betze/Post mine.

   In Lands Council, the plaintiffs argued that the cumulative
impacts analysis contained in an EIS for a large timber sale
was inadequate, because the Forest Service “did not note in
detail past timber harvesting projects and the impact of those
projects on the . . . watershed.” Id. at 1027. We agreed with
the plaintiffs:

    [T]here is no catalog of past projects and no discus-
    sion of how those projects (and differences between
              GREAT BASIN MINE WATCH v. HANKINS                8647
      the projects) have harmed the environment. Apart
      from a map in the Project file that shows past har-
      vests, with general notes about total acres cut per
      watershed, there is no listing of individual past tim-
      ber harvests. Moreover, there is no discussion of the
      connection between individual harvests and the prior
      environmental harms from those harvests that the
      Forest Service now acknowledges. Instead, the Final
      Environmental Impact Statement contains only
      vague discussion of the general impact of prior tim-
      ber harvesting, and no discussion of the environmen-
      tal impact from past projects on an individual basis,
      which might have informed analysis about alterna-
      tives presented for the current project.

Id.

   Similarly, in Klamath-Siskiyou, we reviewed environmental
assessments (EAs) prepared by the Bureau involving multiple
timber sales within the same watershed. Although each of the
EAs included a twelve-page section headed “Cumulative
Impacts,” we concluded that the sections were inadequate: “A
considerable portion of each section discusses only the direct
effect of the project at issue on its own minor watershed. In
the parts of the section where the other projects are contem-
plated, there is no quantified assessment of their combined
environmental impacts.” 387 F.3d at 994. The analysis, we
pointed out, principally consisted of a table that included pro-
jected impacts from the other sales. We held that the table was
insufficient because it did not provide “objective quantifica-
tion of the impacts. . . . [T]he reader is informed only that a
particular environmental factor will be ‘unchanged,’
‘improved,’ or ‘degraded’ and whether that change will be
‘minor’ or ‘major.’ The reader is not told what data the con-
clusion was based on, or why objective data cannot be provid-
ed.” Id.

  Under the standard set forth by Lands Council and
Klamath-Siskiyou, we conclude that the cumulative impacts
8648         GREAT BASIN MINE WATCH v. HANKINS
analyses in the Amended South Project and Leeville final
EISs are insufficient. The Amended South Project cumulative
impacts review is largely based on the April 2000 analysis of
the impacts of the groundwater pumping to be done by
Leeville, Amended South Project, and the nearby Goldstrike
mine. While this April 2000 document and the Amended
South Project final EIS contain an in-depth discussion of
impacts from groundwater pumping, other mines are men-
tioned in almost no other part of the cumulative impacts anal-
ysis.

   [17] In the Amended South Project final EIS, the analysis
of the effects of existing mines in the area is limited to a
generic map entitled “Mining Activity in the Carlin Trend”
and three tables that list existing and reasonably foreseeable
mines. The “Air Resources” section of the final EIS, for
example, contains the conclusory statement that “[t]here is
potential for cumulative effects from hazardous air pollutants
including compounds of arsenic, hydrogen cyanide, manga-
nese, propylene, and acid aerosols. . . . Cumulatively, these
mining emissions are minimized to some degree because of
project separation distances, meteorological conditions that
promote good dispersion, and the fact that not all projects
would produce emissions concurrently.” Nowhere is this
somewhat alarming statement supported by data broken down
by mine, or even by cumulative data.

   [18] Similarly, when discussing hazardous waste, the final
EIS simply states that “[a]ll hazardous wastes must be han-
dled according to approved permits or be disposed of accord-
ing to state or federal regulations. The known and reasonably
foreseeable project would cumulatively result in larger vol-
umes of hazardous wastes stored on site, transported on state
and federal highways, and disposed of in approved disposal
sites.” The report states that the volumes of hazardous waste
cannot be quantified “until future hazardous waste generators
are identified.” However, the report could at the least quantify
the existing volumes of hazardous waste, and fails to do so.
             GREAT BASIN MINE WATCH v. HANKINS              8649
We hold that these vague and conclusory statements, without
any supporting data, do not constitute a “hard look” at the
environmental consequences of the action as required by
NEPA. As in Lands Council, the final EIS contains “no dis-
cussion of the environmental impact from past projects on an
individual basis” apart from the pumping of groundwater. 395
F.3d at 1027.

   The Bureau responds that the acreage of surface distur-
bance with the Pete Project, at least, is implicitly included in
the cumulative effects analysis for other resources, such as
soils and vegetation. We have held, however, that this is
insufficient under NEPA. “A calculation of the total number
of acres to be [impacted by other projects] in the watershed
is a necessary component of a cumulative effects analysis, but
it is not a sufficient description of the actual environmental
effects that can be expected from logging those acres.”
Klamath-Siskiyou, 387 F.3d at 995. The Bureau also gives no
explanation for why other mining projects were not explicitly
discussed in the cumulative impacts analysis.

   [19] The Leeville final EIS is also insufficient, similarly
failing to discuss the specific impacts of other mines except
in the analysis of groundwater pumping. For example, the
analysis of cumulative impacts on air is only five sentences
long and includes no mine-specific or cumulative data, merely
stating that “[a]mbient air quality data for the region currently
reflects impacts of existing mining operations in the airshed.”

   Additionally, as Great Basin points out, the Leeville final
EIS contains no discussion whatsoever of the cumulative
impacts of sludge or hazardous waste disposal. The Bureau
responds by saying that the toxicity of the sludge has not been
determined and thus need not be analyzed. If allowed, this
would vitiate the Bureau’s duty to take a “hard look” at the
cumulative impacts of the action.

  [20] “The [Bureau] cannot simply offer conclusions.
Rather, it must identify and discuss the impacts that will be
8650         GREAT BASIN MINE WATCH v. HANKINS
caused by each successive [project], including how the com-
bination of those various impacts is expected to affect the
environment, so as to provide a reasonably thorough assess-
ment of the projects’ cumulative impacts.” Id. at 1001. We
conclude that the cumulative impacts analysis done by the
Bureau was insufficient and thus reverse the district court on
this ground.

   Because we hold that the cumulative impacts analysis was
insufficient, we need not address whether the Newmont
power plant should have been considered by the Bureau in the
first instance. We observe, however, that Newmont proposed
the power plant before the Decisions were issued, and that we
have upheld the Environmental Protection Agency’s rule
change to accommodate the proposal. See Great Basin Mine
Watch v. EPA, 401 F.3d 1094, 1100-01 (9th Cir. 2005). Thus,
the Bureau may consider in the first instance whether the
power plant and its emissions are, at this point, “reasonably
foreseeable” for purposes of inclusion in the cumulative
impacts analysis.

                            VII.

   43 C.F.R. § 3809.552(a) maintains that individual financial
assurances (FAs) “must cover the estimated cost as if [the
Bureau] were to contract with a third party to reclaim your
operations according to the reclamation plan, including con-
struction and maintenance costs for any treatment facilities
necessary to meet Federal and State environmental stan-
dards.” The Bureau allowed Newmont to bond the Amended
South Project in phases. Great Basin argues that the financial
assurances were invalid both procedurally and substantively.
The district court held that Great Basin “failed to establish
that the [Bureau] abused its discretion or was arbitrary and
capricious in its bonding decisions.”

  “We must give substantial deference to an agency’s inter-
pretation of its own regulations. Our task is not to decide
             GREAT BASIN MINE WATCH v. HANKINS              8651
which among several competing interpretations best serves
the regulatory purpose.” Thomas Jefferson Univ. v. Shalala,
512 U.S. 504, 512 (1994) (citations omitted). “[J]udicial
review of an agency’s interpretation of its own regulations is
limited to ensuring that the agency’s interpretation is not
plainly erroneous or inconsistent with the regulation.” Forest
Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir.
2003).

   Great Basin first argues that the Bureau failed to calculate
the full cost of reclamation before approving a bond for Phase
I of the Amended South Project, and that such a calculation
is required by 43 C.F.R. § 3809.552. We agree with the
Bureau that the regulation does not require the calculation.
The cited regulation merely requires the Bureau to obtain a
financial guarantee before permitting.

  [21] Great Basin’s interpretation of the regulation is also in
conflict with other regulations allowing the bond amount to
be posted in phases. See 43 C.F.R. § 3809.553(a) (“BLM may
authorize you to provide a financial guarantee covering a part
of your operations”); 43 C.F.R. § 3809.553(b) (“BLM will
review the amount and terms of the financial guarantee for
each increment of your operations at least annually”). The
Bureau did not act arbitrarily or capriciously in failing to cal-
culate the bond amount for the entire project.

   Next, Great Basin contends that the amount of the bond
was “grossly inadequate.” According to Great Basin, the
Amended South Project Phase I FA failed to follow the
Bureau’s binding regulations because it did not add enough
for indirect costs. Great Basin relies primarily on two reports
prepared by its expert, James R. Kuipers. However, as the
Bureau points out, the fact that Great Basin’s consultant dis-
agrees with the Bureau’s analysis does not make the analysis
arbitrary and capricious. See Greenpeace Action v. Franklin,
14 F.3d 1324, 1332 (9th Cir. 1993) (“an agency must have
discretion to rely on the reasonable opinions of its own quali-
8652         GREAT BASIN MINE WATCH v. HANKINS
fied experts even if, as an original matter, a court might find
contrary views more persuasive”). Additionally, though Great
Basin argues that the Bureau has assumed that “costs will
never rise in upcoming years,” the Bureau’s regulations man-
date review of the “amount and terms” of phased FAs “at
least annually,” 43 C.F.R. § 3809.553(b), and in the case of
non-phased FAs, “periodically.” Id. § 3809.552(b).

   Finally, Great Basin argues that the Bureau erroneously
allowed Newmont to post a corporate guarantee instead of
providing a proper financial instrument. While the Bureau
“will not accept any new corporate guarantees or increases to
existing corporate guarantees,” 43 C.F.R. § 3809.574, the pro-
hibition does not apply to corporate guarantees that were in
effect prior to January 20, 2001.

   It is clear that, in this case, the bond refers to corporate
guarantees that existed prior to the regulation: “August 1995
bonding documentation provided to [the Bureau] from New-
mont shows that the Nevada Division of Environmental Pro-
tection holds $2,250,000 in the form of Corporate Guarantees
. . . .” Great Basin’s argument fails as a matter of law.

  [22] We conclude that the Bureau did not act arbitrarily or
capriciously in setting Newmont’s financial assurance
requirements.

                              VIII.

   Finally, Great Basin seeks to file a notice from the NDEP
concerning Newmont’s state water permit application.
According to Great Basin, the document demonstrates that
both Newmont and NDEP consider Leeville, the Amended
South Project, and another Newmont project, Pete, to be one
project for permitting purposes. The Notice was issued after
the stipulated deadline for filing extra-record documents. The
district court refused to admit the notice into evidence and
also refused to take judicial notice of the facts contained in it.
              GREAT BASIN MINE WATCH v. HANKINS               8653
We review for an abuse of discretion. Northcoast Envtl Ctr.
v. Glickman, 136 F.3d 660, 665 (9th Cir. 1998).

   The Supreme Court has expressed the general rule that
courts reviewing the agency action are limited to the adminis-
trative record. Fla. Power & Light Co. v. Lorion, 470 U.S.
729, 743-44 (1985). However, “[i]n limited circumstances,
district courts are permitted to admit extra-record evidence:
(1) if admission is necessary to determine whether the agency
has considered all relevant factors and has explained its deci-
sion, (2) if the agency has relied on documents not in the
record, (3) when supplementing the record is necessary to
explain technical terms or complex subject matter, or (4)
when plaintiffs make a showing of agency bad faith.” Lands
Council, 395 F.3d at 1030, quoting Southwest Ctr., 100 F.3d
at 1450 (internal quotations and citation omitted). The district
court held that the plaintiffs “failed to satisfy any of these
exceptions.”

   [23] We hold that the district court did not abuse its discre-
tion in refusing to admit the extra-record evidence. As the dis-
trict court stated, the plaintiffs “have not demonstrated that
the criteria used by NDEP have any relevance to a NEPA
analysis. . . . [T]he NDEP Notice does not assist in under-
standing either the subject matter of this case or BLM’s deci-
sion.” The document was not relied on by the Bureau, is not
necessary to explain technical terms, and does not demon-
strate bad faith on the part of the Bureau.

   [24] For the same reasons, the district court did not abuse
its discretion in refusing to take judicial notice of the facts set
forth in the document.

 AFFIRMED IN PART; REVERSED IN PART;
REMANDED.
8654         GREAT BASIN MINE WATCH v. HANKINS
THOMAS, Circuit Judge, concurring in part and dissenting in
part:

   I agree with the majority’s holding that the Bureau’s cumu-
lative effects analysis was insufficient under NEPA, and its
consequent reversal of the district court’s grant of summary
judgment as to that issue. However, I respectfully dissent
from the conclusion that Leeville and the Amended South
Project are not connected actions requiring a single, compre-
hensive EIS.

  A careful analysis of the record demonstrates that the
Bureau should have prepared a single comprehensive EIS for
Leeville and the Amended South Project. Leeville is depen-
dent on the South Operations Area Project. Because the
Amended South Project is merely, in the agency’s words, “an
expansion of” the South Operations Area Project, Leeville
and the Amended South Project are necessarily connected
actions for NEPA purposes.

   Employment of the “independent utility” test does not lead
to a different conclusion. The benchmark of “independent
utility” is whether “ ‘each of two projects would have taken
place with or without the other and thus had independent utili-
ty.’ ” Wetlands Action Network v. U.S. Army Corps of Eng’rs,
222 F.3d 1105, 1118 (9th Cir. 2000). When one of the proj-
ects might reasonably have been completed without the other,
each has independent utility and they are not ‘connected’ for
NEPA purposes. Native Ecosystems Council v. Dombeck, 304
F.3d 886, 894 (9th Cir. 2002). The sole purpose behind the
Leeville mine is to obtain gold and other minerals from the
solids mined. For this to be accomplished, those solids must
be processed after extraction. The solids extracted at Leeville
are sent to the South Operations Area Project for processing.
The Leeville draft EIS states that “[o]re hoisted to the surface
would be hauled directly to processing facilities at the Refrac-
tory Ore Treatment Plant (Mill #6) located at Newmont’s
South Operations Area [Project], or placed in a refractory ore
                GREAT BASIN MINE WATCH v. HANKINS                     8655
stockpile approximately one-half mile west of the production
shaft.”1 The total amount of “ore [and waste rock] hoisted to
the surface” is around 18 million tons. The two projects are
clearly interconnected and should be considered in a single
EIS.

   Our case law supports this conclusion. In Blue Mountains
Biodiversity Project v. Blackwood, 161 F.3d 1208, 1215 (9th
Cir. 1998) and Thomas v. Peterson, 753 F.2d 754, 758 (9th
Cir. 1985), we determined (1) that five logging projects in one
watershed, and (2) a logging project and a road to facilitate it,
respectively, had to be considered in comprehensive EISs.
Proper application of Blue Mountains and Thomas dictate that
a single EIS should have been prepared in this case.

   The Bureau relies on Wetlands Action Network, 222 F.3d
at 1119, and Sylvester v. U.S. Army Corps of Engineers, 884
F.2d 394, 400 (9th Cir. 1989), in which we held that compre-
hensive EISs were not required for (1) three phases of a wet-
lands filling project, and (2) a resort complex and golf course.
However, those cases are distinguishable from the present cir-
cumstance.

   In Sylvester, we noted that the resort and golf course “each
could exist without the other, although each would benefit
from the other’s presence.” Sylvester, 884 F.2d at 400. Simi-
larly, we reasoned in Wetlands Action Network that “the util-
ity of [the first] part of the project does not depend upon the
completion of the later phases of the project[, and i]t would
not be unwise or irrational to undertake the building of Phase
I even if it was determined that the later phases could not be
constructed.” 222 F.3d at 1118.
  1
   Presumably, the ore placed in the stockpile is stored there until it also
goes to the South Operations Area Project for processing. Even if it does
not, however, the analysis is unaltered, applying with the same force to a
portion of the mined solids as to the whole.
8656            GREAT BASIN MINE WATCH v. HANKINS
   Leeville and the Amended South Project are more akin to
the logging project and logging road than the resort complex
and golf course. It would be not merely unwise, but also
entirely irrational to proceed with the mining of Leeville in
the absence of available processing facilities.2 See id.; see
also Trout Unlimited v. Morton, 509 F.2d 1276, 1285 (9th
Cir. 1974) (requiring a single EIS where “[t]he dependency is
such that it would be irrational, or at least unwise, to under-
take the first phase if subsequent phases were not also
undertaken”). The South Operations Area Project processing
facilities are therefore more like the logging road in Thomas,
which was essential to the logging operation at issue, than the
golf course in Sylvester, which was beneficial but not essen-
tial. Rather than merely “benefit[ting] from the . . . presence”
of the South Operations Area Project, the Leeville project
could not exist without a processing facility. This facility is
in the South Operations Area Project, and so the agency
should have prepared a single EIS to analyze the impact of
both Leeville and the expansion of the South Operations Area
Project, the Amended South Project.

   To the Bureau, Leeville’s dependence on the South Opera-
tions Area Project is unproblematic; it accepts the contention
that the South Operations Area Project and the Amended
South Project are distinct and unconnected. However, the
record is replete with the Bureau’s assertions that the
Amended South Project is, for all relevant purposes, nothing
more than an expansion of the South Operations Area Project.
For example, the final EIS for the Amended South Project
  2
    The Bureau also relies on the fact that tailing from processing Leeville
ore at the South Operations Area Project would be deposited in existing
tailing disposal facilities. The tailings are the waste products that remain
after the valuable components are isolated and extracted through process-
ing. Because processing is itself an essential step, and processing at the
South Operations Area Project is sufficient to defeat Leeville’s “indepen-
dent utility,” it is irrelevant that disposal of post-processing tailing does
not show Leeville’s further dependency on the South Operations Area
Project.
             GREAT BASIN MINE WATCH v. HANKINS            8657
describes the project as “activities that would support contin-
ued operation and expansion of existing gold mining and pro-
cessing at [Newmont’s] South Operations Area Project[,
which] would not cause any new kinds of [environmental]
impacts . . . but would extend the time period during which
existing impacts would continue.” The Amended South Proj-
ect represents the expansion from the 7,960 total acres dis-
turbed by the South Operations Area Project to 9,352 total
acres, disturbed by the South Operations Area Project and the
Amended South Project together. Indeed, in preparing the
final EIS for the Amended South Project, the Bureau noted
that “[i]n many cases, the EIS will refer to the original South
Operations Area Project EIS rather than repeat information
that has not changed substantially [since the preparation of
that document].” Similarly, in response to a comment by Min-
eral Policy Center that “[d]ue to the complexity, size, and
importance of the current [draft EIS] (and [cumulative
impacts analysis]), the sixty day comment period [wa]s not
nearly sufficient for full and competent response,” the agency
simply noted that it “consider[ed] 60 days to be adequate
because this Plan of Operations is an expansion of an existing
project.”

   It is illogical for the agency to assert the Amended South
Project’s intense connection to the South Operations Area
Project when convenient, only to deny that same connection
in order to justify the refusal to prepare a single EIS for the
Leeville and Amended South Projects. Permitting the Bureau
to do so would impermissibly allow the agency to “divid[e]
a project into multiple ‘actions,’ each of which individually
has an insignificant environmental impact, but which collec-
tively have a substantial impact.” Wetlands Action Network,
222 F.3d at 1118 (internal quotation marks and citation omit-
ted). Here, the asserted division between the Amended South
Project and the South Operations Area Project acts to insulate
Leeville from the Amended South Project, in contravention of
both CEQ guidelines and our caselaw.
8658        GREAT BASIN MINE WATCH v. HANKINS
   For these reasons, I conclude that a single, comprehensive
EIS was required and would reverse the district court’s grant
of summary judgment for the defendants as to this issue, as
well as the cumulative impacts analysis. I therefore respect-
fully dissent.
