(A) If this State authorizes any activity or use which requires closure of shellfish bottoms or waters, the portion of permitted bottoms or waters which falls within the closed area may be removed from the permit acreage, and the permit acreage agreement and annual fee adjusted on the annual renewal date.

(B) If any activity or use is permitted:

(1) over the objections of the department; or

(2) for a project of overriding public need;

and if the activity or use causes shellfish bottoms or waters to be unsuitable for the purposes of shellfish propagation or diminishes the productivity of any shellfish bottoms or waters, the agency which allowed the activity, upon recommendation by the department, must require mitigation for the loss of the resource. Mitigation must not be considered as a factor to justify adverse impacts, and this section must not be interpreted as authorizing any adverse impact on shellfish bottoms or waters.

(C) If an unauthorized action results in an adverse impact on shellfish bottoms or waters, the responsible party may be required by the department to mitigate for the loss of the resource and to compensate the department’s shellfish permittee.

(D) Where shellfish grounds have been adversely impacted or closed by previous state authorization and there is additional adverse impact authorized by a state agency, the proponent (permittee) of the additional activity or use must mitigate the additional adverse impact. All such mitigation must benefit the resource.

(E) Mitigation of adverse impacts on shellfish bottoms and waters must be determined by the department. The determination constitutes a final agency decision for the purposes of the Administrative Procedures Act.