The Vermilion River Lease Agreement Explained
By Erik Sprenne
An article providing summary and comment on the Vermilion River Lease agreement
Midwestern paddlers know all too well that due to it not being on a very short list of Illinois “Public Waters”, the popular Lowell to Oglesby section of the Vermilion River has been closed to paddling since July 2009, after a number of incidents and a death at the cement plant dam. It’s hard to blame Buzzi Unicem, the current cement plant owners, for wanting to minimize corporate legal liability by taking advantage of the available legal options to do so, but the flip side of the issue is that this section of river has seen constant recreational activity for decades – which made the closure a more difficult pill to swallow. The purpose of this article is not to provide detailed discussion about the whys or wherefores of Illinois water law (why the river could be closed), but rather to explain provisions of the November 2010 lease agreement between the Illinois DNR and Buzzi Unicem that will eventually allow the public to recreate on this very popular river reach.
A copy of the lease agreement and support documents were obtained from the DNR through a Freedom of Information Act request, and more current bidding documents (for work that must be done before the river can be paddled) were recently found on the internet. The main points of the agreement will be summarized, but it is suggested that interested folks read the lease agreement itself, which, along with support documents, is posted on the CWA web site.
Perhaps the first thing to understand is exactly which section of river is affected by the closure. Figure 1 presents a map of the area showing the extent of cement plant property, which is an annotated version of the lease agreement’s Exhibit A, and shows the locations of the dam, Wildcat Rapid, and the commonly used put-in and takeout locations. This map shows that the cement plant property starts about a half mile upstream of Wildcat Rapid, and extends downstream of the cement plant - a total of about 3 miles out of the entire 7.75 mile run (for reference, state-owned property borders about 4.1 miles of this reach).
The lease agreement states compliance with the provisions of the Recreational Use of Leased Land Act (745 ILCS 67), which grants owners immunity from liability IF their land is leased to the IL DNR for less than $5. Until 2005, a companion law – the Recreational Use of Land and Waters Area Act (745 ILCS 65) also applied – which grants liability immunity to landowners who allow the public to recreate on their private lands. But in 2005, this Act was amended to re-define “recreation or conservation purpose” to include only hunting and recreational shooting activities. This change of definition has proved to have far-reaching implications for landowners who allowed the public to recreate on their property, as it significantly narrowed the scope of activities previously covered by this law. Efforts made in recent years to amend the law to broaden the definition of “recreation or conservation purpose” in the Act have failed, reportedly due to lobbying efforts by the Illinois Trial Lawyers Association. Bottom line – free access to private property for paddling no longer provides liability immunity, and hadn’t done so for the cement plant since the definitions were changed. It’s therefore not surprising that a token lease of river property to DNR was the best way for the cement plant to legally protect itself while still allowing for public recreation on the river.
The particulars of the lease agreement of most interest to paddlers may be these:
- The lease period runs until 10/31/2035 (for a lease cost of $4), and the lease has the “sole purpose of managing the Leased Premises to provide for public recreation use…..” - with the DNR assuming “…all responsibility to manage, preserve, protect, and provide law enforcement for the Leased Premises.” The real estate being leased is the riverbed and the banks up to the high water mark.
- The DNR is responsible for all work necessary “…to make the Lease Premises safe and usable for recreational use, including but not limited to the work and activities described in the Improvement Plan…” (see Exhibit B discussion below)
- The DNR is also to “…take all reasonable precautions and actions necessary during the term of this Agreement to guard and warn against any naturally occurring or artificial dangerous conditions…on…the River within the Leased Premises.”
- The lease agreement is subject to the DNR obtaining annual funding sufficient to “…ensure proper management of the Leased Premises.”.
- The lease agreement will remain in effect should ownership of the cement plant change.
Improvement Plan
With the above being a digest of the lease provisions, let’s now consider the required Exhibit B “Improvement Plan” provisions that must be put in place before the river is opened to recreation. As above, the items below are also excerpted, and the reader is referred to the actual document for all the details:- Collect streamflow data to determine the flow rate at different stages at the dam, and to assess the stage and flow at which the hazards increase.
- “Place three 1/2 inch diameter steel cables approximately 15 feet above the water from which eight buoys would be positioned, three of which would be lit with a solar/battery powered light. The first four buoys and cable are to be positioned approximately 150 feet upstream of the dam in a diagonal alignment over the River helping to direct all boat traffic to the river right location of the boat passage section of the dam; the right most buoy will have a strobe light. The second cable will be suspended over the centerline of the dam with a buoy having a strobe light hanging above the left end of the boat passage area. The third cable would be suspended over the River approximately 60 feet downstream of the dam and will have three buoys; the right most buoy will have a strobe light. The buoys will be placed in the locations shown on the Attachment 1 diagram.”
- “Place and maintain two diamond shaped signs on left abutment of the dam which would clearly identify the presence of the dam from upstream and downstream. Place and maintain two other signs along the River facing upstream to notify the public of the existence of a dam ahead and to stay right. One will be approximately 180 feet upstream of the dam and another at the boat ramp, as depicted on the Attachment 2 diagram.”
- “Install and maintain appropriate signage on the banks of the River indicating that the shoreline is private property and public access is permitted only on the River.”
- “Remove exposed rebar in the structure which protrudes into the open water where boaters and floaters pass. This action can only be accomplished when river conditions allow.”
- “Place concrete blocks and/or rock in the scour hole below dam, as necessary, to reduce or eliminate hydraulic roller. Placement of concrete blocks will require use of a crane on the top of the wall along the River above the wall.”
- “File an Administrative Rule to identify the area within the buoys as a "Designated Restricted Boating Area" under 17 IAC 2030.”
- “Survey the River to design and construct a permanent solution to the safety risks at the dam structure. These surveys in the water, river cross sections, dam cross sections and environmental analysis, require work in the water and can only be performed when flow conditions are considered acceptable for such work.”
- “Construct a permanent solution with LSI's review and written approval required for any modifications to the dam.”
Discussion
Without delving into the intricacies of Illinois water law, or broaching the topic of possible designation of the Vermilion River as “Public Waters”, this lease agreement may be the best and easiest compromise for regaining the ability to legally float the Wildcat section of the Vermilion River, while addressing Buzzi Unicem’s need for immunity from liability. Had the definitions not been changed in the Recreational Use of Land and Waters Area Act in 2005, the river closure might never have happened.
It’s goofy that the plan document requires dropping concrete blocks behind the dam only to 6 feet below water level. If this costly effort does not completely eradicate the hydraulic, it seems a wasted effort. I had envisioned that the blocks would be stair-stepped up to the top of the dam, with the end result being generally similar to the rehabbed Glen Palmer Dam in Yorkville. I guess the DNR feels that designating most of the river near the dam, except for a channel along the river-right bank, is sure to keep folks from floating over the dam... It is not clear whether the DNR will pursue a more permanent fix to mitigate the hydraulic, though the vague language of the agreement suggests this may be a possibility. As was reported in the newspaper, the bid documents state that the contractor will have a 45 day time period to complete the work – but a large rain event or three after the start of construction could easily extend this time period.
Although the river will again be open to paddling, the text of the agreement suggests that two other changes may come along with the legal right to float. An increased DNR presence is very likely, and along with that may come enforcement of boat registration for Illinois residents. Vermilion boaters have flown under the radar screen since the registration requirement was instituted in 1987, but it may now be time for Vermilion paddlers (who are Illinois residents) to get those boats registered. Another more unpalatable consequence may be possible temporary closures of the river at high flows, similar to what the DNR has been doing in recent years for other rivers that are on the “public waters” list. Those familiar with the river know that certain playspots in the first half of the run are optimal at very high flows – when both Wildcat and the dam are washed out and pose no danger. Let’s keep our fingers crossed that the Vermilion will not be part of the illogical DNR river closure program.
There is no mention of Wildcat rapid in the lease – which some have suggested might be a possibility. The rapid certainly has changed since the April 2009 landslide, and although reports indicate it is not as user-friendly as it was before the slide, we can only keep our fingers crossed that the DNR does not feel obligated to either change a natural feature or try to mandate what they may feel are ‘safe behaviors’ at the rapid.
With the leased property extending only to the high water mark, it is curious that the high water mark is not defined in the agreement. Further dialog with the DNR is in progress to help ensure that portage paths will be legally available both at Wildcat and the dam, and to point out that the overhead cabled ‘buoys’ may present snag hazards for trees flushing down the river at extreme flows.
Finally, a big Thank You! Is in order to all paddlers who contacted state officials with requests to work towards opening the river for recreation. Paddlers also owe a big Thank You! to members of the Better Fishing Association of Northern Illinois, who were probably even more vocal in demanding that something be done to allow recreation on the Vermilion River.
References:
Lease-related documents are in the reference files box at the top of this page.
Documents publicly available for contractors bidding on the scour hole repair: http://eplan.dot.il.gov/desenv/012111/01W/ (the bid document contains a copy of the lease agreement on pp 97-115)