A Naperville lawmaker is hoping to fix what some say is an antiquated state rule that lets property owners restrict kayakers, swimmers, fishermen and other from using small rivers and streams that cross their private land.
In a recent decision, the Illinois Supreme Court affirmed existing state law prevents people from using waterways like the DuPage River — deemed “unnavigable” because they can’t be traversed by commercial vessels — if they don’t have permission from those who own the land along the banks.
The ruling has been of interest to Naperville kayak and Plainfield tubing businesses and groups like the Naperville Park District and the DuPage and Will county forest preserve district, which have been promoting and building more recreational access for the public on the DuPage River.
State Rep. Janet Yang Rohr, D-Naperville, said she plans to submit legislation that would preserve access and public recreational use of the river while respecting private property rights.
“Hopefully we can get it through during the veto session in November,” Rohr said.
The language was drafted a year ago by her office after property rights on the DuPage River came into question when Plainfield residents complained to the Illinois Department of Natural Resources that people tubing on the river left trash and trespassed on their private properties, she said.
Because a state Supreme Court ruling on the issue was expected, “we just figured we would just wait and see how that went and what the decision was before introducing (the legislation),” Rohr said.
“The bill is basically written in a way that non-motorized watercraft, like a kayak or a tube, will be able to float down the river,” Rohr said, as long as the public is respectful an doesn’t litter or step onto private property.
A provision allowing people to leave the river on private property in emergency situations is included, she said.
Those who use the DuPage River for recreation were worried that part or all of the waterway might be shut down to public use, potentially impacting businesses like the Plainfield River Tubing and Naperville Kayak.
The IDNR did not address the issue last year because a dispute — Adam Holm v. Peter Kodat — over a family’s right kayak on the Mazon River was headed to the Supreme Court.
The Holm family owns several parcels of property along the river in Grundy County, one of which is landlocked but can be accessed via the river by paddling through other landowners’ properties. Holm argued that as a property owner on the river, he and his family should be able to kayak the entire river recreationally.
Justice Robert Carter in his opinion said the Legislature is the best venue to address recreational access.
In a concurring opinion, Justice P. Scott Neville said the current law is based on “anachronistic rules that had their origins in British common law.”
He said lawmakers should redefine navigability in terms of recreation and move Illinois water law into the 21 century.
“Because most waterways in Illinois are not navigable under the common-law definition, very few opportunities exist for extensive public recreational use of waterways,” Neville wrote. “In my view, it is extremely important that the definition of navigability be expanded and that the public be given an easement for recreation.”
The IDNR has not responded to multiple requests for a comment on the court’s decision.
It maintains a list of waterways deemed navigable and open to public use, including the Fox, Chicago, Kankakee, Illinois and Des Plaines rivers in the Chicago area.
Although the DuPage River is designated by the state as private, multiple governmental bodies have constructed access points along the waterway for the public to launch non-motorized watercraft, such as kayaks, canoes, paddleboards, and inflatable rafts and tubes.
Naperville Park District Director Brad Wilson said the U.S. government and Illinois Environmental Protection determined the DuPage was a navigable river because the district was forced to clean up Sportsman’s Park after a 1998 federal lawsuit charged lead shot from the park had polluted the water in the marsh and two ponds that are tributaries of the DuPage River.
More than $5 million was spent on renovations to clean up contaminants and improve the facility.
Plainfield resident Ralph Osuch, of Friends Of The DuPage, said the IDNR for years has been noncommittal on the matter, and he supports Rohr’s efforts to clear up the confusion with the law.
In addition to the people with their own watercraft who use the DuPage River, he said, tubing and kayak rental companies are conducting commerce on a river that’s not navigable.
“The word navigable and unnavigable is a very antiquated thing,” Osuch said. “I navigate the river all the time so that part doesn’t make sense.”
Troy Cooper, owner and operator of Naperville Kayak, said he also is working with Rohr to get the issue resolved.
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