NMSU releases Project Jupiter NDA, desalination agreement

THE DOCUMENTS:
• Contract related to development of desalination plant
• Non-disclosure agreement

PREVIOUS COVERAGE:
• County releases Project Jupiter job, economic details (Sept. 12)
• Why are government agencies signing Project Jupiter NDAs? (Sept. 10)
• Project Jupiter agreements must protect water, residents (Sept. 8)
• Developer must guarantee Project Jupiter’s rosy promises (Sept. 3)

New Mexico State University has a $30,000 contract to provide “advisory work and counseling” to a company involved in Project Jupiter related to the development of a water desalination plant.

As part of that work, the university and BorderPlex Digital Assets signed a non-disclosure agreement that allows documents to be labeled as proprietary.

The NDA requires NMSU to tell the company if any law or official order requires release of such documents before divulging them. And if the company decides to oppose release of those records, NMSU must “provide reasonable aid and assistance” in those efforts.

That appears to be a legally binding commitment by the university to err on the side of secrecy if BorderPlex Digital asks for it. That’s a concern many have expressed about such confidentiality agreements, which the developers of data centers are increasingly requiring from local government agencies across the nation.

The N.M. Foundation for Open Government has questioned the need for NDAs when state law already dictates what information government can withhold from the public — like company trade secrets — and what it must release.

The revelations about NMSU’s arrangement with BorderPlex Digital come from documents the university released Friday in response to a records request I submitted on Aug. 26. The university had pledged to respond by Friday, and did so at 4:58 p.m.

Because I received the documents at the end of the university’s work week, I haven’t yet been able speak with officials about them. I emailed questions on Sunday.

But I wanted to share the news with you as soon as possible, given the Doña Ana County Board of Commissioners’ rapidly approaching votes on Sept. 19 to provide tax incentives for the project.

The first NDA released publicly

NMSU joins the county and the Camino Real Regional Utility Authority (CRRUA), in entering into non-disclosure agreements with Project Jupiter’s developers. The university is the first to release an NDA in response to my records requests.

The county’s attorney told me last week that her office was still considering whether to release its NDAs. Then she told me Friday she will provide me with those documents on Monday.

CRRUA’s staff disclosed the existence of that agency’s NDA at a public meeting of its governing board last week. The utility was required to respond to my request for a copy of that NDA by Thursday, but has not yet done so.

I have requests out to state agencies involved in Project Jupiter as well. The Governor’s Office responded Friday to my request for any NDAs and other documents by deeming my request “excessively burdensome or broad” and requiring more time. That office promised another response by Sept. 29 — well after the county commission’s votes.

The state Economic Development Department also owed a response to my request for any NDAs and other documents by Friday. It failed to respond, even though I emailed the records custodian a reminder about the deadline.

NMSU’s confidentiality agreement is the earliest government document I have obtained related to Project Jupiter. Officials from NMSU and BorderPlex Digital signed it on Feb. 10.

A little more than two weeks later, on Feb. 25, the company and university entered into the contract related to the desalination plant. That same day, Gov. Michelle Lujan Grisham and BorderPlex Digital’s chairman, Lanham Napier, signed a memorandum of understanding and announced the project publicly.

It’s worth noting that the university’s NDA refers to the data center proposal as Project Nucleus, so the developers apparently changed the name later.

NMSU’s desalination work

The contact between NMSU and BorderPlex Digital relates to efforts led by Pei Xu, a civil engineering professor at the university who has been working for years on a water desalination feasibility study for the Santa Teresa area, where Project Jupiter would be built.

Fresh water is being depleted by use in the City of Sunland Park and the unincorporated Santa Teresa area, so being able to tap into the massive brackish groundwater aquifer underneath has become increasingly important.

The university’s work has included developing engineering designs for a desalination plant. The researchers estimated the cost in 2023 to be between $35 million and $192 million depending on the capacity needed, with a mid-range system estimated to have a total construction cost of almost $133 million.

The documents NMSU released Friday don’t explain BorderPlex Digital’s involvement in the desalination efforts. Was the company looking to build its own plant? Providing funding to support and speed along existing government efforts? Buying goodwill as it sought changes in state law and regulatory paths toward approval of its data center project?

Though many data centers use lots of water, the Project Jupiter developers have pledged, at least verbally, to use a “closed loop, non-evaporative cooling technology.” They say it will require a one-time fill-up and no additional water after that.

They promise only regular ongoing water use for several hundred employees after that — though their planned microgrid, which will include natural gas power generation, will also use water.

NMSU’s contract with BorderPlex Digital has the university participating in an investigation of the brackish aquifer along with the state engineer.

The contract also requires NMSU to provide feedback to EPCOR — which I am guessing, but have not verified, is the North American water and power company that has a New Mexico office — as EPCOR investigates water-rights permitting and other logistics, including locations for a facility, development plans and cost estimates.

This is the first time I’ve seen EPCOR mentioned in documents related to Project Jupiter.

Project Jupiter’s public pledge

In recent weeks, Project Jupiter has pledged on its website to “invest tens of millions of dollars in essential county water infrastructure improvements” beyond what it needs for its own facilities. Such an investment recognizes “the critical importance of safe and reliable drinking water” and is intended “to strengthen long-term water security and sustainability for the entire region,” the website states.

I’m still waiting for the county to release the agreements with the developers of Project Jupiter that commissioners will consider at their Sept. 19 meeting. Among my questions is whether that water pledge will be quantified and required in a written agreement.

DISCLOSURE: My spouse, state Rep. Sarah Silva, participated in negotiations related to Project Jupiter. To preserve my ability to report on Project Jupiter and my spouse’s ability to do her job, I will not use anonymous sources in my articles about this topic. I will continue to report using documents and named sources only.