concurring in the result.
I agree with the majority that the decision of the Court of Appeals should be affirmed, but for entirely different reasons from those contained in the majority opinion. Accordingly, I concur only in the result reached by the majority.
I do not believe that the Legislature has authorized the Director of the Division of State Lands to issue a permit such as he issued in the present case. I do agree that the statutory language is unclear. Under these circumstances, our doubts should be resolved against *210any extension of the Director’s authority and in favor of preserving this state’s existing water resources.
I do not mean to imply that the majority’s construction of the statutes is unreasonable. We all agree that both petitioners and respondents have plausible arguments in support of their respective theories. Nevertheless, I am more persuaded by the respondents’ position for the following reasons.
In enacting the Fill and Removal Law, the Oregon Legislature provided the following policy statement, codified in ORS 541.610:
"(1) The protection, conservation and best use of the water resources of this state are matters of the utmost public concern. Streams, lakes and other bodies of water in this state, including not only water and materials for domestic, agricultural and industrial use but also habitats and spawning areas for game and food fish, avenues for transportation and sites for public recreation, are vital to the economy and well-being of this state and its people. Unregulated removal of material from the beds and banks of the waters of this state may create hazards to the health, safety and welfare of the people of this state. Unregulated filling in the waters of this state may result in interfering with or injuring public navigation, fishery and recreational uses of the waters. In order to provide for the best possible use of the water resources of this state, it is desirable to centralize authority in the Director of the Division of State Lands, and implement control of the removal of material from the beds and banks or filling of the waters of this state.
"(2) The Director of the Division of State Lands shall take into consideration all beneficial uses of water including streambank protection when administering fill and removal statutes.” (Emphasis added.)
Although this statement of policy does not explicitly limit the Director’s discretion, it is of aid in determining the policy against which petitioner’s action must be measured. The fact that a statute is not in *211the form of a directive or compulsory standard does not mean it cannot be used in evaluating administrative action to determine whether it is consistent with the relevant legislative policy. Anderson v. Peden, 284 Or 313, 320, 587 P2d 59 (1978). Despite the absence in the statute of an express limitation on petitioner’s power, I believe such a limitation is implicit in the statutory language.
The statute provides that authority over fills is centralized in the Director of the Division of State Lands "[i]n order to provide for the best possible use of the water resources * * Water resources, of course, can be used to provide both water-related and non-water-related public benefits. The benefits specified in the statute, however, assume use of the water as such:
"* * * Streams, lakes and other bodies of water in this state, including not only water and materials for domestic, agricultural and industrial use but also habitats and spawning areas for game and food fish, avenues for transportation and sites for public recreation, are vital to the economy and well-being of this state and its people. * *
This language indicates a legislative policy in favor of enhancing the public’s use of water resources as water resources. As such, it militates against use of water resources to provide a nonwater-related public benefit. This reading of the legislative policy is buttressed by the fact that the interests mentioned in the statute, "public navigation, fishery, and recreational uses of the water,” are all water related. While other interpretations are possible, I agree with respondents that the thrust of the language in ORS 541.610 is toward limiting petitioner’s discretion to authorization of fills that are in some way water related.
Respondents’ position also is supported by an examination of the express factors the Director is to consider in deciding whether to issue a fill permit. ORS 541.625(2) provides:
"The Director of the Division of State Lands may issue a permit applied for under ORS 541.620 for *212filling waters of this state. In determining whether or not a permit shall be issued, the director shall consider the following:
"(a) Whether the proposed fill unreasonably interferes with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation;
"(b) Whether the proposed fill conforms to sound policies of conservation and would not interfere with public health and safety;
"(c) Whether the proposed fill is in conformance with existing public uses of the waters; and
"(d) Whether the proposed fill is consistent with a duly enacted zoning or land use plan for the area where the proposed fill is to take place.”
It is apparent from an analysis of these factors that the Legislature’s concern was with promoting water-related interests. ORS 541.625(2)(a) and (c) both focus on the public interest in use of the water. It is not necessary for us to determine whether the proposed Coos Bay fill is "inconsistent” with these criteria, as the Court of Appeals held.1 It is sufficient for present purposes to note that the factors reflect a strong legislative policy in favor of preserving public use of the water.
The Director, of course, emphasizes that the statute only requires him to "consider” the enumerated factors. From this he seems to argue that he is left with unlimited discretion if, after "considering” the statutory criteria, he sees no reason not to permit the fill. This analysis reflects a misunderstanding of the role allocated to administrative agencies in the governmental scheme. To argue that the Director is free to allow anyone to use the state’s land for his own purposes *213unless there is a demonstrated reason not to allow it puts the cart before the horse. The question is for what objectives the legislature authorized the Director to allow such uses, not under what circumstances he can refuse them.
The fact that an agency "considers” certain factors does not of itself validate administrative action unless that action also furthers the relevant legislative polity. Judicial review of administrative action therefore requires that the court engage in a two-step analysis. It must first determine the relevant legislative policy. Having done so, it must then determine whether the agency has complied with statutory directives in a manner that furthers the relevant policy. While the statutory directives may be of aid in determining legislative policy, they do not by themselves define that polity.
The Director contends that the relevant legislative polity is not the prohibition of nonwater-related fills completely, but merely the prohibition of those fills that unreasonably interfere with the public’s water-related interests. In support of this contention, he relies on the language of ORS 541.625(2)(a), which requires the Director to consider "[wjhether the proposed fill unreasonably interferes with the paramount policy of this state to preserve the use of its waters for navigation, fishing, and public recreation.” However, the subsection actually repeats that the "paramount policy” of the state is to preserve the use of its waters for navigation, fishing, and public recreation. In light of the statement of legislative policy contained in ORS 541.610, I believe a better reasoned interpretation of ORS 541.625(2)(a) merely allows the Director to authorize fills that, while possibly interfering with one water-related interest, nevertheless enhance another water-related interest. For example, the Director could authorize a fill that benefits the public interest in navigation even though that fill interferes to some degree with public fishing or recreation interests. The Director could not, however, authorize a fill *214that interferes with the public’s water-related interests but provides no water-related benefit whatsoever.
I find further support for my interpretation of the statutes in the legislative histoiy of the Fill and Removal Law. During hearings on the bill that was to give petitioner authority to permit fills, the Legislature had before it testimony from the Attorney General that its power to authorize the filling of Oregon waters might be limited:
"We are not in any position to define precisely what all these public rights are, but I think we are in the position that we have to advise the agencies that we represent, which include the State Land Board and various other agencies of state government, that there is a good likelihood that, considering the trend of the law and considering the trend of the time, the courts are going to continue to expand this doctrine but the Oregon courts will follow noted decisions in other states which have expanded and which say that anything that affects the recreational use of our waters in this state or any kind of fill that would affect those who use it, it is not permissible and is an inalienable right of the public which can be enforced either through a public official or by private action. [Emphasis added.]
"This means that in this posture, if SB 224 passes in its present form, or even with the amendments I have to date, and one of those sets of amendments says that (concern for the public interest) is one of the standards the State Land Board must follow in granting permits for fills so that it does not interfere with the rights of navigation and fishery. I think we would almost have to advise the Board that it would be questionable whether any fill doesn’t interfere with that right. Secondly, if SB 224 didn’t pass, we’re going to be left in a very difficult situation. We’ll certainly have to advise the Land Board as to lands that they control now, that they should not grant any permits for any kind of fill no matter what its purpose would be, and secondly we will probably have to institute a considerable amount of litigation to try to determine what the law is, and to get this question settled. * * *” Remarks of Attorney General Lee *215Johnson, House Subcommittee on Natural Resources (May 12, 1971).
The Legislature also had before it at that time a tentative draft of what eventually became the Attorney General’s "Tidelands Opinion,” 35 Op Att’y Gen 844 (1971). In that draft, the Attorney General expressed a narrow view of the Legislature’s power to permit the filling of tidelands. After observing that "[t]he courts have taken a very restrictive view as to what may be done by the legislature in respect to submerged lands,” the opinion concluded:
"In summary and in answer to your second question, it is our opinion that the Division of State Lands does not have the authority under the filled lands law to permit the filling of tidelands where to do so would result in the destruction of natural clam beds. * * * [Bjecause of the facts assumed in the question, namely the destruction of clam beds, it is our opinion that neither the Department of Environmental Quality nor the Division of State Lands would have the authority to issue a permit to make a fill on tidelands under the filled lands law, unless it could be shown that such a fill was necessary to construct facilities in aid of navigation on the waters in question and that the injury to the clam beds could not reasonably be avoided.” (Exhibits on SB 224, House Subcommittee on Natural Resources May 12, 1971) (emphasis added).
Although the quoted passage refers to the Division’s statutory authority, it appears from other parts of the opinion that the Attorney General's construction of the statute was based in large part on the assumption that the Legislature lacked the powerto delegate more extensive authority to the Division.2
The majority notes that the Attorney General suggested certain criteria to guide the Director in *216authorizing fills and that the Legislature modified the suggested criteria in the direction of granting the Director broader discretion. That is true, but there is nothing in the legislative history to indicate the Legislature believed it was exceeding its power, as defined by the Attorney General, in enacting the Fill and Removal Law. Absent evidence to the contrary, I would not attribute to the Legislature an intention to do something the Attorney General told it it could not.
I would also note that while petitioner’s interpretation of its statutory authority is entitled to some deference, that interpretation, insofar as expressed in petitioner’s administrative rules, has thus far been inconsistent. In fact, it is somewhat ironic that in the present case petitioner, during hearings on the permit application, excluded the very evidence necessary to determine whether there was a nonwater-related need for the fill in question. This demonstrates that the Director itself recognizes that it lacks the expertise to determine whether or not a proposed fill serves a nonwater-related "public benefit,” yet this is the test the majority today adopts for determining what fills are permitted under ORS 541.605 et seq.
I would hold that the Director is authorized to permit water-related fills only, and I would therefore affirm the Court of Appeals.
Lent, J., and Linde, J., join in this opinion.
The Court of Appeals stated:
"* * * A major landfill undertaken to accommodate an upland use, i.e., a nonwater-related use such as the airport runway extension project authorized by this order, is inconsistent with both of these criteria [contained in ORS 541.625(2)(a) and (c)] and, therefore, is impermissible under the statute and beyond the statutoiy authority of the Division.” 34 Or App at 868.
Elsewhere the opinion states:
"* * * While the state may dispose of its tidelands, it cannot by such disposition destroy the public’s rights in the waters over those tidelands, and the owner of the tidelands holds title subject to the public right of navigation and corollary rights included thereunder.” (Emphasis added.)