Plainfield business owners, lawmakers argue DuPage River should be open to public

The owners of a tubing company in Plainfield and state lawmakers are arguing the DuPage River should be open to the public amid a state agency’s review of the law surrounding use of the waterway.

An attorney for the owners of Plainfield River Tubing sent a letter to the Illinois Department of Natural Resources last week arguing it is navigable, a key factor for whether bodies of water in Illinois can be deemed public. The state considers a body of water “navigable” if water craft can traverse it for commercial purposes.

The letter came after one property owner along the river asked the IDNR to review the ability of the tubing company to use the river for its business. The IDNR has said the DuPage River is not designated as a public body of water, therefore the public does not have the right to use it for recreation.

The business owners’ attorney, Patrick Cullinan, wrote that his clients agree that members of the public cannot walk on or use homeowners’ private land abutting the river. However, he refuted some of the homeowners’ arguments that their property rights extending into the river limit the public’s access to the water.

“While these homeowners may indeed have ownership of the riverbed to the midpoint, as you know, under Illinois law there exists a public easement for navigation along the waters of rivers and streams that are navigable in fact,” he wrote.

Cullinan also took issue with the IDNR’s apparent reliance on a recent court ruling which limited the public’s access to portions of the Mazon River in Grundy County. Plainfield Mayor John Argoudelis told The Herald-News the IDNR informed him it’s analyzing that ruling to determine what the public’s rights are to use the DuPage River.

Cullinan argued that ruling is not appropriate since the parties in that case did not argue the Mazon River is navigable. He instead pointed to another court case from 2015 involving the use of the Green River in the northwestern part of the state.

In that case, Cullinan argued the U.S. District Court spelled out that the public has an easement for the purposes of traveling on navigable waterways. He said the court also specified that a commercial use of a waterway can include “the transportation of persons and property by land, water and air.”

Cullinan pointed out the DuPage River has long been used by visitors transporting themselves via canoes, kayaks and motorboats, including customers of Plainfield River Tubing.

He also cited literature endorsed by the IDNR, including a map that identifies the DuPage River as a suitable waterway for paddling with launch sites.

Cullinan added the river’s historical uses as a fur trading route or as a way to transport passengers “speak to its capability for useful commerce.”

“In sum, the DuPage River, and in particular the section of river running through Plainfield, has enjoyed public and commercial activity for years, lending to its characteristic as a navigable waterway capable of supporting useful commerce,” Cullinan wrote.

IDNR spokesman Tim Schweizer said he didn’t know whether his agency had received Cullinan’s letter and that he would defer comment on it until it’s reviewed.

Cullinan also pointed to a letter from five state legislators representing the area around the river in which they said “for reasonable and navigable purposes, public use of the river cannot be denied.”

State Rep. Mark Batinick, R-Plainfield, was one of the signees asking the IDNR for clarification.

“The DuPage River is a beloved waterway in the Chicago suburbs,” Batinick said in a statement. “I am committed to allowing public use of the DuPage River and would support related legislation on this matter. Clarification that the public cannot be denied access to this important part of our communities is needed.”

Local officials in Plainfield have said they are awaiting clarification from the IDNR about the public’s right to access the DuPage River. Argoudelis, Plainfield’s mayor, said the village granted Plainfield River Tubing a business license and will abide by the IDNR’s legal interpretation. Still, he said, the village is taking action to address concerns over users littering along the river.

Anyone can petition the IDNR to add the DuPage River to its list of public bodies of water. Schweizer said as of Tuesday, such a request is not under review.