STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. SWAIM,

vs.

Petitioner,

Case No. 15-0001RU

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Respondent.

/

FINAL ORDER OF DISMISSAL

This cause came before the Administrative Law Judge on Respondent’s motion to dismiss. A response in opposition to the motion was filed by Petitioner.

The statement which Petitioner alleges is an unadopted rule is Respondent’s interpretation of section 373.4136(6)(d)2. as not being applicable to Petitioner’s proposed private driveway. The statute states that “linear projects, such as roadways, transmission lines, distribution lines, pipelines, railways, or seaports” are eligible to use a mitigation bank, regardless of 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 discussion 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. of Admin. v. Huberty, 46 So. 3d 1144, 1147 (Fla. 1st DCA 2010) citing St. Francis Hospital, Inc. v. Dep't. of Health & Rehab. Servs., 553 So. 2d 1351, 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

Tallahassee, 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

Delray 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 Building

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, Executive 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 headquarters or where a party resides or as otherwise provided by law.

Docket for Case No: 15-000001RU

Orders for Case No: 15-000001RU