15-000001RU William B. Swaim vs. South Florida Water Management District Status: Closed DOAH Final Order on Monday, February 16, 2015.

Summary: The petition is dismissed because the alleged unpromulgated rule was merely the interpretation of statute that was consistent with the plain meaning of the statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. SWAIM,

Petitioner,

vs. Case No. 15 - 0001RU

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent.

_______________________________/

FINAL ORDER OF DISMISSAL

Th is cause ca me before the Administrative Law Judge on

RespondentÓs motion to dismiss. A response in opposition to the

motion was filed by Petitioner.

The statement which Petitioner alleges is an unadopted rule

is RespondentÓs interpretation of section 373.4136(6)(d) 2. as not

being applicable to PetitionerÓs proposed private driveway. The

statute states that Ðlinear projects, such as roadways,

transmission lines, distribution lines, pipelines, railways, or

seaportsÑ are eligible to use a mitigation bank, regardless o f

whether they located within the mitigation service area.

Petitioner believes his driveway should be considered a linear

facility.

Respondent raises a number of grounds, not all of which

appear to have merit, but this case can be determined without a

di scussion of all of the grounds raised. The case can be

dismissed on the ground that the alleged statement is not a

rule. The alleged statement is not a rule because it is

consistent with the plain meaning of the statute. A statement of

how a statute is applied that is consistent with the plain

meaning of the statute does not require rulemaking. See State

Bd. o f Admin. v. Huberty , 46 So. 3d 1144, 1147 (Fla. 1s t DCA

2010) citing St. Francis Hospital, Inc. v. Dep ' t. of Health &

Rehab. Servs. , 553 So. 2d 13 51, 1354 (Fla 1st DCA 1989)(An agency

interpretation of a statute that does not place upon the statute

an interpretation that is not readily apparent is not an

unpromulgated rule.) . Such a statement does not have any effect

of its own on regulated persons . It is the statute that has the

effect. The plain meaning of section 373.4136(6)(d)2. is that it

is limited to long, public facilities. It clearly is not meant

to include short, private facilities. Furthermore, a driveway is

not a roadway. No rule is needed to tell a permit applicant that

the statute does not apply to a private driveway.

The deficiency in the petition cannot be cured by

amendment. Accordingly, it is

ORDERED that the motion is GRANTED and the petition is

DISMISSED with prejudice.

DONE AND ORDERED this 16th day of February , 2015 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February , 2015 .

COPIES FURNISHED:

William B. Swaim

Apartment 104

5455 Via Delray

Del ray Beach, Florida 33484

(eServed)

Jennifer Brown, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R. A. Gray Buildi ng

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Blake C. Guillory, Exec utive Directory

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 4680

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to section 120.68, Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original

notice of administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

of the order to be reviewed, and a copy of the notice,

accompanied by any filing fees prescribed by law, with the clerk

of the District Court of Appeal in the appellate district where

the agency maintains its headquarte rs or where a party resides or

as otherwise provided by law.