Sylva Herald Challenges WCU’s Public Transparency On Cullowhee Dam

Mar 12, 2019

It’s Sunshine Week - which media outlets use to underscore the importance of government transparency and access to public records.  The Sylva Herald recently had to take legal action against Western Carolina University over a public document regarding the Cullowhee Dam. Herald reporter Dave Russell joined BPR’s Lilly Knoepp to talk about why the Jackson County paper felt the document was important enough to fight for.

Here are excerpts from the interview:

To start off let’s talk about why Western Carolina University is involved in a dispute about a dam in the first place? -

“Well it’s a dam that they own and its future is unknown at this point. There have been a series of studies since 2004 when we had Hurricanes Frances and Ivan come through. They had an engineering report done that said that there was a more thorough study was needed, which they did in January of 2017. It pointed out lots of structural issues with the dam and made some recommendations that something be done.

Well it goes back to a July 2017 report that laid out several courses of action for Western to go forward with the dam and that particular report recommended repairing it at a cost of $900,000 so American Rivers which is a nonprofit based in DC that also has an office here in Asheville – they are a big proponent of dam removal – of free-flowing rivers and they paid for a follow up report in December of 2018. They paid an outfit here in Asheville called McGill and Associates to do a study to see if the dam could be removed and water could still be supplied to WCU and TWASA.

The Tuckaseigee Water and Sewer Association serves about 2,400 people in Sylva, Dillsboro and Webster from that intake and area. The WCU campus serves about 8,000 people on campus on that intake.

So they sent McGill and associates back to the drawing board to see if this was feasible. So I did a follow up report about dam in late January and asked about the report.

I was told that it was a draft report so I could not have it and that it was done by American Rivers they had paid for it so I should call them and ask for it. So I called American Rivers and they told me the same thing. So I went ahead and wrote my story on January 30th with what I had and the interviews that I had done about the dam and about a week and half later we decided that we should really press to get this report to see for ourselves what it said.”

Why did you feel like it was important to do this?

“Well this is a public document. North Carolina General Statute 132-1 lays out what public documents are and who can access them. And the who that can access them is anyone

We wanted to be a part of the conversation – and we wanted our readers to be a part of the conversation around this report. We didn’t know if it said that there is a 90% chance that it was going to fail in the next 10 days or if it was going to say that there was no problem with it just leave it as it is but we wanted to find out – and that’s why we pressed.”

How did Western respond when you asked them this document?

“By the way a phone call is a public records request. So I followed that up with an email and at first their response was that they wanted to get it to general counsel and he wanted to study the law to get a greater understanding ‘what the law said regarding preliminary working drafts’ that was one of the things that they had told me on the phone is that this was a draft report and not a completed report

That’s from Bill Studenc the school public information officer.  That was what they first said is that they wanted to look over the draft.”

“So I contacted Amanda Martin from Stevens, Martin Vaughn & Tadych.  She’s a communications and first amendment law attorney and I asked, ‘Drafts are public records, right?’ and she said you are ‘You are absolutely correct. Drafts are public record that was litigated decades ago.’

I had requested the report and I had gotten back another email which said ‘the general counsel has requested an opportunity to review the request – a preliminary draft of the report which is marked as a draft not for distribution owned by American Rivers.’ So I went back to Amanda Martin and she said, ‘It covers all documents made or received in the transaction of public business. It doesn’t matter who commissioned it or who paid for it.’

So finally we worked with an attorney and served WCU officials to get that draft document.”

 So what then was Western’s reaction? What did they say when you told them you were prepared to take legal action if they didn’t provide this report to you?

“The paper came out on Wednesday that said we were going to press legal action and they sent the document over the weekend.”

 So what did this report say – was it anything new?

“No actually, it wasn’t anything new in regards to warnings about the dam.

So yeah it did say there were issues with the dam and as earlier reports had said doing nothing was not an option. Something needed to be done about the dam.” 

So it’s been public knowledge that this has needed to be fixed since 2004. Why was this report done now in 2018?

“So the 2004 report reported on some damage but I don’t think that it said this has to be done now. I think that the issue that is really driving this now is getting rid of the dam. I think that before American Rivers stepped in I think they’ve come in and they have a history of dam removal nationwide and locally.”

One of the things in your story is the environmental angle of the removal of the dam. Can you tell people about the endangered species that are present in the Tuckasegee River?

“The Tuckasegee is home to two threatened and endangered species whose ranges are limited by the Cullowhee Dam. The Appalachian Elktoe Mussel. The second is the Sickle fin red horse – it’s a fish and an endangered species candidate.”  

Since you all have taken legal action against Western to get this report that you all see as public record, you all have gotten some backlash in the March 6th paper in the form of letters to the editor. People are wondering why you would go after Western since it is one of the largest employers in Sylva and you all have a beneficial relationship. Why did you feel like it was important to take them to task on this?

“Well I think that they has been something of a history of this according to my editor Quintin Ellison, and we wanted people to know and I think that we wanted the community to know that we are looking out for their interests. And we wanted other agencies the town board, county manager – we wanted them all to know what a public records request is and that we were willing to pursue it.”

And you had another letter from Mike Beyers, who was quoted in your story. He is the vice chancellor of administration and finance at Western. He had two issues with your story one that they never tried to keep the report from you all and two that it was never a public document because it was made by a nonprofit entity, American Rivers, which is a private association. He says that those statements in your story are inaccurate. How do you respond to that?

“He apparently doesn’t remember our phone conversation in which he said no and told me that it was a draft. In our emails that I sent and that they sent back to me. If you really parse it down in these emails that Western sent to me they never said no we won’t send it to you. What they said was we should send it to you but we are going to wait until such and such SO I think he sees it differently and that’s fine but I stand by my reporting.”

So the other thing that he brings up is that bring legal action against western and asking for these documents in this public fashion you have eroded the trust of the community and the newspaper especially as he puts it ‘during this time when fake news’ is running rampant. What do you have to say to that?

“I don’t think that we have eroded the public trust. I think that we have actually enhanced it I don’t think we’re enemies with Western. We certainly respect their status in our area and what they do for Jackson County.”

So what happens now? The final version of the report hasn’t been released yet. What happens next?

“They will go back to TWASA and Western Carolina for feedback then a final report will be released at the end of March.”

Great! Thanks so much for coming out Dave.

Thanks for having me Lilly.

Additional Statement:

Western Carolina University shared with BPR a message that its general counsel included with submission of the report to the Sylva Herald.

“The university is glad to put this matter to rest. We would like our neighbors to know that the reason for requesting additional time to review the draft report was not to infringe upon the public’s right to access a public record. Rather, university officials assumed a responsibility, as a public agency, to ensure ample time for experts (attorneys and engineers) to review a report, submitted to WCU by a third party in a draft preliminary form, for errors of omission or fact. WCU strives to be a good neighbor and partner, and we believed that the premature disclosure of information that had not been reviewed sufficiently could potentially undermine the efforts of many to create a free-flowing river and ensure a high-quality supply of water to meet current and future needs in our community. I am confident that the requested period of two weeks to reply to the public records request met both the letter and the spirit of the law.”

Western Carolina University is a business sponsor of Blue Ridge Public Radio.