dissenting.

I dissent1 from our denial of the petition for reconsideration in Morse v. Division of State Lands, 34 Or App 853, 581 P2d 520 (1978), because, in my opinion, this court erred in adopting a rigid rule which is incompatible with the discretionary powers which the legislature sought to vest in the Director of the Division of State Lands by ORS 541.625(2) which provides:

"(2) The Director of the Division of State Lands may issue a permit applied for under ORS 541.620 for filling 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.” (Emphasis added.)

Under these guidelines, there was substantial evidence to affirm the granting of the permit to use the dredge spoils to extend the airport runway. The rule relied on by the majority is not so absolute as to nullify the powers delegated by the legislature to the Division of State Lands.

*668Since I did not participate as a member of the panel in this case, it was not until after our in banc consideration of the petition for reconsideration that I could respectfully publish my dissent.