33 C.F.R. § 332.5

Ecological performance standards

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(a) The approved mitigation plan must contain performance standards that will be used to assess whether the project is achieving its objectives. Performance standards should relate to the objectives of the compensatory mitigation project, so that the project can be objectively evaluated to determine if it is developing into the desired resource type, providing the expected functions, and attaining any other applicable metrics (e.g., acres).

(b) Performance standards must be based on attributes that are objective and verifiable. Ecological performance standards must be based on the best available science that can be measured or assessed in a practicable manner. Performance standards may be based on variables or measures of functional capacity described in functional assessment methodologies, measurements of hydrology or other aquatic resource characteristics, and/or comparisons to reference aquatic resources of similar type and landscape position. The use of reference aquatic resources to establish performance standards will help ensure that those performance standards are reasonably achievable, by reflecting the range of variability exhibited by the regional class of aquatic resources as a result of natural processes and anthropogenic disturbances. Performance standards based on measurements of hydrology should take into consideration the hydrologic variability exhibited by reference aquatic resources, especially wetlands. Where practicable, performance standards should take into account the expected stages of the aquatic resource development process, in order to allow early identification of potential problems and appropriate adaptive management.

Notes of Decisions
Cited in 2 cases, 2013–2018 · leading case: Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers, 963 F. Supp. 2d 670 (W.D. Ky. 2013).
Kentuckians for the Commonwealth v. U.S. Army Corps of Engineers, 963 F. Supp. 2d 670 (W.D. Ky. 2013). · cites it 2× “In their last argument regarding stream functions, Plaintiffs contend that the Corps arbitrarily and capriciously failed to impose real ecological performance standards to measure whether the mitigation is performing its expected functions, contrary to 33 C.F.R. § 332.5 . This…”
Sierra Club, Inc. v. St. Johns River Water Mgmt. Dist., 320 F. Supp. 3d 1298 (M.D. Fla. 2018). “See 33 C.F.R. § 332.5 . The Sierra Club next argues that the Farmton Local Plan 6 was somehow "incorporated" in the MBI Modification, thereby "unleash[ing] decades of development into *1306 the FMB, with all the resulting environmental degradation .”
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