DENECKE, Chief Justice.
The State, acting through the Director of the Division of State Lands, brought this suit to enjoin the defendant from filling a portion of Five Mile Creek without first obtaining a permit. The trial court dismissed the Division's complaint. The Court of Appeals reversed and held the defendant must secure a permit before filling the creek. 26 Or.App. 887, 554 P.2d 529 (1976). We allowed the defendant's petition for review.
The issue is whether a rule adopted by the Division is authorized by ORS 541.605(8). The rule is an interpretive rule as defined by ORS 183.310. ORS 183.400(2) provides that the validity of such a rule may be tested in a proceeding of this type which seeks to enforce the rule.
In 1971 the Oregon Fish Commission and the Game Commission appeared before a Senate committee suggesting that the existing law prohibiting excavating material from the waters of the state without a permit be amended. They suggested it be amended by also prohibiting the filling of waters of the state without a permit. The legislature so amended ORS 541.615. It also amended the definitions section by adding the italicized words, "`Waters of this state' means natural waterways including all tidal and nontidal bays, constantly flowing streams, lakes and other bodies of water in this state * * *." Oregon Laws 1971, ch. 754, § 1, p. 2103. ORS 541.605(8).
The Division adopted a rule which defined "constantly flowing stream" as "any stream which flows during a portion of every year and supports aquatic life."
Five Mile Creek runs through defendant's land in Wasco County, north central Oregon. It is dry between June or July and October. There are varying amounts of water in it during other parts of the year. Game fish spawn in it and inhabit it when there is water. Game fish spawn and inhabit areas of Five Mile Creek above defendant's property in which there is always water. The trial court made no express findings on the issue but we read the testimony to support a finding that when there is water in the creek on defendant's property, it supports aquatic life and it does flow during a portion of the year.
The best standard for statutory construction applicable to the problems of this case is the often-quoted statement in U.S. v. Amer. Trucking Ass'ns, 310 U.S. 534, 542-544, 60 S.Ct. 1059, 1063, 84 L.Ed. 1345 (1940):
We have adopted this statement and standard. Johnson v. Star Machinery Co., 270 Or. 694, 704, 530 P.2d 53 (1975); Fox v. Galloway, 174 Or. 339, 346-347, 148 P.2d 922 (1944).
The trial court was of the opinion that "these words are sufficient in and of themselves to determine the purpose of the legislation." U.S. v. Amer. Trucking Ass'ns, supra, 310 U.S. at 543, 60 S.Ct. at 1063. Using the dictionary as a guide, it concluded that a "constantly flowing stream" was one that flowed continuously and uninterrupted. The trial court stated a commonplace meaning of a "constantly flowing stream" would be one which does not go dry. Based upon these definitions, the trial court held the statute did not cover Five Mile Creek where it ran through defendant's land.
The Court of Appeals applied a different part of the standard stated in U.S. v. Amer. Trucking Ass'ns, supra, 310 U.S. 534, 60 S.Ct. 1059, and held: "Our examination of the legislative history as set forth in the briefs leads us to a different conclusion." 26 Or. App. at 892, 554 P.2d at 532. The Court of Appeals was of the opinion that from testimony before the Senate Committee on Fish and Game, a court could determine the purpose of adding "constantly flowing." It gleaned that the purpose was to eliminate those "intermittent streams that have never had a fish in them." 26 Or. App. at 892, 554 P.2d at 532.
We are unable to conclude that the legislative history is so clear as to rebut the ordinary meaning of "constantly flowing stream."
The legislative history quite clearly shows that the representative of the Fish and Game Commissions desired the bill to require a permit for streams that, while not constantly flowing, did, at sometime, in some portions of the stream, produce salmon and steelhead. The members of the Senate Committee and the Senate probably initially also had that intention. This is because the bill was amended and passed by the Senate with the italicized amendment, "`Waters of this state' means natural waterways capable of sustaining fish species including all tidal and nontidal bays, streams, * * *." Engrossed SB 224, § 1(8).
The House, however, amended the Senate Bill to delete the italicized words. House Amendments to Printed Engrossed Senate Bill 224. Conferees of both houses then met and amended the bill to add, "constantly flowing," modifying "streams." There is no further history which might explain these amendments.
The House action in deleting "capable of sustaining fish species" could be interpreted to express an intent to include all streams whether or not they were capable of sustaining fish species. There is no known reason, however, why they would have had such a purpose. The House's approval of the bill amended to contain the phrase, "constantly flowing," is certainly a limitation of some kind on the type of stream covered.
We conclude that the legislative history of the phrase, "constantly flowing," does not support the interpretation given that phrase in the Division's regulation. While, in light of that history, it may not distort the ordinary meaning
We will not attempt to formulate a rule for the Division; that is its function. We hold that the rule adopted was unauthorized and, therefore, the Division cannot, on