NC0038687_Fact Sheet_20231120

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FACT SHEET FOR EXPEDITED PERMIT RENEWALS
This form must be completed by Permit Writers for all expedited permits which do not require
full Fact Sheets. Expedited permits are generally simple 100% domestics (e.g., schools, mobile
home parks, etc.) that can be administratively renewed with minor changes but can include
facilities with more complex issues (Special Conditions, 303(d) listed water, toxicity testing,
instream monitoring, compliance concerns).
Basic Information for Expedited Permit Renewals
Permit Writer/Date
Charles H. Weaver — 9/7/2023
Permit Number
NCO038687
Facility Name
Singing Waters Camping Resort
Basin Name/Sub-basin number
04-04-02
Receiving Stream
Trout Creek
Stream Classification in Permit
WS-III Trout
Does permit need Daily Max NH3 limits?
N/A due to massive dilution
Does permit need TRC limits/language?
Already resent
Does permit have toxicity testing?
No
Does permit have Special Conditions?
No
Does permit have instream monitoring?
No
Is the stream impaired (on 303(d) list)? For
No
whatparameter?
Any obvious compliance concerns?
No enforcements since 2009. One NOD and
one NOV during this permit cycle
Any permit modifications since lastpermit?
No
New expiration date
10/31/2028
Changes in Draft Permit?
➢ Updated eDMR language
➢ Added monitoring for turbidity to
determine compliance with 15A
NCAC 0213.0211 (21)
➢ Added instream temperature
monitoring to determine compliance
with 15A NCAC 0213.0211 (18)
➢ Added monitoring for dissolved
oxygen to determine compliance with
15A NCAC 0213.0211 (6)
Comments on draft permit
➢ SELC sent standard comment letter
requesting a temperature limit for this
trout water discharge. NPDES
management determined that effluent
from 100% domestic WWTPs is not a
heated liquid, as specified in the Rule.
No limit was added.
Changes in Final Permit?
➢ Owner name updated due to death of J.
Patrick Kennedy.

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Invoice / Affidavit
Crossroads Chronicle
P.O. Box 1040 Cashiers North Carolina 28717
Phone: [phone]
Fax: [phone]
STATE OF NORTH CAROLINA
JACKSON COUNTY
AFFIDAVIT OF PUBLICATION Personally appeared before the undersigned, Rachel
Hoskins, who having been duly sworn on oath that she is Regional Publisher of
The Crossroads Chronicle, and the following legal advertisement was published
in The Crossroads Chronicle newspaper, and entered as second class mail in the
Town of Cashiers in said county and state; and that she is authorized to make
this affidavit and sworn statement; that the notice or other legal
advertisement, a true copy of which is attached hereto, was published in The
Crossroads Chronicle newspaper on the following dates:
SINGING WATERS RESORT
PUBLIC NOTICE
10/04/2023
And that the said newspaper in which such notice, paper, document or legal
advertisement was published, was at the time of each and every such
publication, a newspaper meeting all the requirements and qualifications of
Section I-597 of the General Statues of North Carolina and was a qualified
newspaper within the meaning of the Section I-597 of the General Statues of
North Carolina.
Sworn to and subscribed before me this 4th day of October, 2023
'&�arm& My Commission Expires:/ L l
Notary Public (
Filed with: NCDENR- DIV WATER RESOURCES ``W�\PuIIII1111���
Address: 1617 MAIL SERVICE CENTER RALEIGH NC 27699 `�� ��• NN
Date: 10/04/2023 `�.� .,•�/F �.��
TOTAL COST: $ 54 . 92 •• NQ%'• N
= qq -
�•'AGe�•` •m
I III
PUBLIC NOTICE
North Carolina Environmental
Management
Commission/NPDES Unit
1617 Mail Service Center
Raleigh, NC 27699-1617
Notice of Intent to Issue a
NPDES Wastewater Permit
NCO038687 Singing Waters
Camping Resort The North
Carolina Environmental
Management Commission
proposes to issue a NPDES
wastewater discharge permit to
the person(s) listed below.
Written comments regarding the
proposed permit will be accepted
until 30 days after the publish
date of this notice. The Director
of the NC Division of Water
Resources (DWR) may hold a
public hearing should there be a
significant degree of public
interest. Please mail comments
and/or information requests to
DWR at the above address.
Interested persons may visit the
DWR at 512 N. Salisbury Street,
Raleigh, NC 27604 to review the
information on file. Additional
information on NPDES permits
and this notice may be found on
our website:
hftps://deq.nc.gov/public-notices-
hearings,or by calling (919) 707-
3601. J. Patrick Kennedy
requested renewal of permit
NCO038687 for the Singing
Waters Camping Resort WWTP
(1006 Trout Creek Rd, Cashiers)
in Jackson County. This
permitted facility discharges
treated domestic wastewater to
Trout Creek in the Little
Tennessee River Basin.
Currently fecal coliform and total
residual chlorine are water quality
limited. This discharge may
affect future allocations in this
portion of Trout Creek.
10/04/2023 #782782

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ROY COOPER
Governor �
ELIZABETH S. BISER
Secretary
RICHARD E. ROGERS,IR.
Director
NORTH CAROUNA
Environmental Quality
PERMIT NAME/OWNERSHIP CHANGE FORM
1 CURRENT PERMIT INFORMATION:
Permit Number: NCOO 38687
— / I or NCGS
1. Facility Name: Singing waters Camping Resort WWTP z
Il' NEW OWNER/NAME INFORMATION:
I. This request for a name change is a result of:
a. Change in ownership of property/company
b. Name change only
go ertw s transferred tohisevopable trust. Addpn trtheick Kenned
Ms. Patricia A. Kenned
name of the curdrent sole trustee 2023
survividr
2. New owner's name (name to be put on permit):
3.
New owner's or signing official's name and title: Patricia A. Kenned
(Person legally responsible for permit)
Trustee of tr,A �,+..,,,�, __ _, � .
(Title) "V'
4• Mailing address: 777 Davis Street Suite 125
State: CA City; San Leandro
Zip Code: 94577
Phone: (510 ) 560 -3052
E-mail address:
THIS APPLICATION PACKAGE WILL NOT BE ACCEPTED BY THE DIVISION UNLESS ALL OF THE
APPLICABLE ITEMS LISTED BELOW ARE INCLUDED WITH THE SUBMITTAL.
REQUIRED ITEMS:
1. This completed application form
2. Legal documentation of the transfer of ownership (such as a ro
incorporation, or sales agreement) p PertY deed, articles of
[see reverse side of this page for signature requirements]
�.._ North Carolina Department of (nvitNFnletltal Quality
2 North Salisbury ! Street ! ! 7 MI DivisioFi of Water Rtesoiirccs
ail ServiceCenrer
o m"Hnrarr�w �� ,iaudir� �./ 719.707.9r}{!p ( Raleigh. North Carolina 27699-1617

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Page 2 of 2
Applicant's Certification:
1, Patricia A. Kenned , attest that this application for a name/ownership change
has been reviewed and is accurate and complete to the best of my knowledge. I understand
that if all required parts of this application are not completed and that if all required supportin g
information and attachments are not included, this application package will be returned as
incomplete.
Signature: 471'A'—'f1r
Date: 8 ' J ,
THE COMPLETED APPLICATION PACKAGE, INCLUDING ALL SUPPORTING
INFORMATION & MATERIALS, SHOULD BE SENT TO THE FOLLOWING ADDDRESS:
NC DEQ I DWR / NPDES
1617 Mail Service Center
Raleigh, NC 27699-1617

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CERTIFICATE OF TRUST
FOR THE
PATRICK AND PATRICIA KENNEDY 2000 TRUST
DING ADMINISTRATION
The undersigned, Patricia A. Kennedy, certifies that she is the presently serving Trustee
Of the Patrick and Patricia Kennedy 2000 Trust. The Patrick and Patricia Kennedy 2000 Trust
was created by J. Patrick Kennedy and Patricia A. Kennedy, as Tr
agreement and Trustees, under an
agreement dated December 18, 2000 (the "Trust").
J. Patrick Kennedy died on April 9, 2023 and, as a result of his death, the Trust is now
under administration.
The following may be relied upon as a true summary of the Trust.
I • Trust is in Effect and is Irrevocable. The
no one has the power Trust is now in full force and effect and
to revoke or amend the Trust duringthe
period of administration.
2• Trustee. Patricia A. Kennedy is the sole presently serving 'Trustee of the Trust.
3. Pages from the Trust. Attached to and made a
correct copies of the following pages from the Trust, as amended of this document are true and
a. the first page;
b. the signature page;
C. the pages that name the successor trustees; and
d. the pages that describe the powers of the trustees.
4. Title to Trust Assets. Title to trust assets shall be held in the following form or in
a form substantially similar to the following: "Patricia A. Kennedy, Trustee of the Patrick and
Patricia Kennedy 2000 Trust dated December 18, 2000."
5. Tax a er Identification Number. The taxpayer identification number for the
Trust during administration is 93-6446328.
6• Certification is Current. The Trust has not been revoked, modified or amended in
any manner which would cause the representations in this Certificate to be incorrectThis
.
Certificate is being signed by the sole presently serving Trustee ofthe Trust.
7. Eriforceabili and Liabili . This Certificate is made pursuant to California
Probate Code Section 18100.5. Any transaction entered into by a person acting in reliance upon
this Certificate shall be enforceable against the trust assets.
CALIFORNIA PROBATE CODE SECTION 18100.5 PROVIDES THAT ANY PERSON
REFUSING TO ACCEPT THIS CERTIFICATE SHALL BE LIABLE FOR DAMAGES,
436SM16161988.1

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INCLUDING ATTORNEY'S FEES, IF A COURT DETERMINES THAT THE PERSON
ACTED IN BAD FAITH.
Reproductions of this Certificate, with reproduced signatures, shall be deemed to be
original counterparts of this Certificate.
The undersigned declares under penalty of perjury under the laws of the State of
California that the foregoing is true and correct and that she executed this Certificate of Trust on
the date shown below opposite her signature.
Dated: ,L 2. 0 it 3
V��L2z [zit aa'c
Patricia A. Kennedy, Trustee
A Notary Public or other official completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached and not the truthfulness, accuracy, or validity of
that document.
STATE OF CALIFORNIA )
COUNTY OF Fyn �� )
On before me,
LNotary Public, personally
appe red PATR�IA &XCEN"�NEL who phy�,,kd
of satisfactory evidence to
be the person whose name is subscribed to the within instrument and acknowledged to me that
she executed the same in her authorized capacity, and that by her signature on the instrument the
person, or the entity upon behalf of which the person acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
rJ 518GRG. KUCHEIt
Rotary Public . California
I Alameda County
Agn'
Comm11S10n # 2435350
YeMY Comm, Expir"jam 21. 2027t ofNo ary Public C ^
43680\16161988.1
2

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43
-2
IF Patrick Kennedy
LAI
Patricia A. Kennedy
Trustors and Trustees
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TRUST AGREEMENT
FOR THE
PATRICK AND PATRICIA KENNEDY 2000 TRUST
J. Patrick Kennedy ("Patrick") and Patricia A. Kennedy ("Patricia"), as Trustors and Trustees,
declare that they have entered into this Trust Agreement on December 18, 2000.
The Trustee agrees to administer all property added to the trust estate, in trust, tinder the terms of
this Trust Agreement. Definitions of certain important terms used in this Trust Agreement are provided in
Article 26.
The revocable trust initially established under this Trust Agreement shall he known as the Patrick
and Patricia Kennedy 2000 Trust. Successor trusts established tinder this Trust Agreement shall be known
by the names designated below in this Trust Agreement or as named by the Trustee, The Trustee may refer
to these trusts by reference to the name of the income beneficiaries of these trusts or the tax elections made
with respect to these trusts.
ARTICLE I
DECLARATIONS
1.1 Family Information. The Trustors are married to each other. They have three (3)
children of their marriage, namely, Jennifer L. Kennedy; Kathryn A. Kennedy; and John M. Kennedy, The
Trustors have no other living or deceased children.
1.2 Property Information. All the community property the Trustors transfer to the Trustee
and the proceeds of that property shall remain the Trustors' comrunity property. All separate property
transferred to the Trustee by either Trustor and the proceeds of that property shall remain that Trustor's
separate property. The Trustee shall segregate the community property and separate property and maintain
books and records showing the character of all property.
ARTICLE 2
RIGHTS RESERVED BY THE TRUSTORS
The Trustors reserve the fallowing rights under this Trust Agreement.
2.1 Rights as to Community Property and Separate Property. During the Trustors' joint
lifetimes, the Trustors shall retain their community rights in their community property as if this trust had not
been created. During the Trustors' joint lifetimes, the Trustee's powers with respect to the community
property transferred to this Torsi shall be co -extensive with, but not more extensive than, those powers
possessed by a husband and wife under Section 1100, et seq,, of the California Family Code. However,
upon the death of either Trustor, all the property held in the trust estate, including the Trustors' community
property and separate property, shall be governed by the terms of this Trust Agreement providing for the
disposition of the Trustors' property upon the Trustors' respective deaths. Notwithstanding any other
provisions of this Trust Agreement, neither Trustor may withdraw the separate property of the other or
revoke or amend this Trust Agreement with respect to the other Trustor's separate property, The powers of
withdrawal, revocation, and amendment are reserved exclusively to the owner of such separate property,
2.2 Right to Add Property to the Trust Estate. The Trustors each reserve the right to
transfer additional property to the Trustee during their lifetimes and at their respective deaths. All such
property transferred to the Trustee shall be added to the trust estate and administered as provided in this
Trust Agreement. The Trustee is authorized and directed to accept the additions to the trust estate. Any

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ARTICLE 15
THE APPOINTMENT OF TRUSTEES
The following provisions shall apply to the appointment, designation, and removal of the Trustee
of each of the trusts established under this Trust Agreement.
15.1 The Trustors' Powers of Appointment, Designation, and Removal- During the
Trusters' joint lifetimes, the Trustors shall have the power to appoint, designate, and remove, with or
without cause, Trustees and Cotrustees. The Trustors may appoint or designate individuals or entities to
serve as Trustee. The Trustors may appoint or designate Trustees to serve alone, to serve with both or
either of them, or to serve with other persons and to serve currently or in the future. The Trustors may also
prescribe the conditions and terms governing the actions, authority, and duties of the Trustees they appoint
or designate, Further, the Trustors may designate a series of persons to serve as Trustees lbllowing their
deaths or following the death, resignation, or inability, failure, or refusal to serve of any Trustee. There
shall be no limit on the number of times the Trustors may exercise the foregoing powers. The appointments
and designations shall be in writing and shall be filed with the current Trustee of the trust. All the Trustors'
appointments and designations shall be revocable and amendable by them unless they provide otherwise.
All the Trustors' appointments and designations shall continue to be effective after their deaths and shall
take precedence over the appointments made under any other provisions of this article.
15.2 Initial Trustees. Pursuant to the Trustors' powers to appoint Trustees, the Trustors
appoint themselves as the initial Trustees under this Trust Agreement. If either Trustor becomes unwilling
or unable to serve as Cotrustee, the other Trustor shall serve alone as sole Trustee.
15.3 Successor Trustees.
(a) The Surviving Spouse's Right to Appoint, Designate, and Remove Trustees.
Upon the death of the Deceased Spouse, the Surviving Spouse shall have the right to exercise the power to
appoint, designate, and remove Trustees reserved to the 'Trustors under Section 15.1. The Surviving Spouse
may appoint any individual (including himself or herself) or entity to serve as a Trustee of any one or more
of the established trusts under this Trust Agreement, and remove that person and appoint and remove
successor Trustees. The Surviving Spouse shall have the power to remove any person appointed or
designated by both Trustors to serve as Trustee. The Surviving Spouse shall have no liability for the acts or
omissions of any person appointed by him or her to serve as a Trustee. Further, the Surviving Spouse shall
have the right to renounce the power granted him or her to appoint and remove Trustees by delivering a
written renunciation to the current Trustee of the trust.
(b) Named Successor Trustees. If both Trustors become unable or unwilling to serve as
Trustees, the Trustors appoint Jennifer L. Kennedy, Kathryn A. Kennedy, and John M. Kennedy to serve as
Cotrustees of each of the trusts established under this Trust Agreement. If any one or more of Jennifer L.
Kennedy, Kathryn A. Kennedy, and John M. Kennedy should fail or become unable or unwilling to serve as
Trustee, the other Trustees shall serve alone.
15.4 Filling Vacancies. If vacancy in a Trustee position is not filled as otherwise provided
in this Trust Agreement, a successor Trustee shall be appointed by a majority of the beneficiaries currently
entitled to receive trust income (with the guardian of any minor beneficiary acting on his or her behalf), or if
none, a majority of beneficiaries who are entitled to distribution in the discretion of the Trustee. If the
beneficiaries entitled to appoint the successor trustee fail to act, the court having jurisdiction over the trust
shall appoint one or more Trustees upon the application of any former Trustee or any trust beneficiary,
current or contingent. If, after the Deceased Spouse's death, an entity other than an individual becomes a
Trustee under this Trust Agreement, the current beneficiaries may remove that entity (with or without
cause) and appoint another qualified entity in its place. In taking this action, the current beneficiaries shall
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act by majority vote_ Each current beneficiary shall have one vote. The natural or legal guardians of a
current beneficiary who is a minor shall exercise the vote of the minor current beneficiary.
15.5 Temporary Incapacity of a Trustee. If, due to illness or other cause, an individual
Trustee is temporarily, but not permanently, unable to give prompt and intelligent consideration to the
financial and administrative matters affecting the trusts for which he or she serves as Trustee, the other
Trustees may, during such temporary incapacity, make any and all decisions regarding the trust estate as
though the incapacitated Trustee were not then serving. In determining the temporary incapacity of an
individual Trustee, the other Trustees may rely on a certificate or other written statement from a licensed
physician who has examined the incapacitated individual Trustee. The other Trustees shall incur no liability
whatsoever to any beneficiary as a result of any action taken under this section.
15.6 Removal of Trustees. Following the death of both Trustors, a majority of the adult
current beneficiaries of any trust, with the concurrence of a majority of the adult presumptive remainder
beneficiaries of such trust, may remove any Trustee of the trust and appoint a Trustee or Trustees to succeed
the removed Trustee, provided at least one adult income beneficiary and one adult presumptive remainder
beneficiary join in the exercise of this power.
15.7 Effective Dates. Any and all appointments, designations, removals, or revocations
affecting a Trustee position shall be made by a written instrument executed by the person entitled to make
the appointment, designation, removal, or revocation. The written instrument shall be effective upon its
delivery to the current Trustee of the trust affected; provided, however, that the appointment of a successor
Trustee or Cotrustee shall become effective only upon the new Trustee's written acceptance of the
appointment and the delivery of this written acceptance to the person who appointed him or her, the other
Trustees, or the current beneficiaries.
15.8 No Bond. No bond or other security shall be required of any Trustee named in this Trust
Agreement or of any Trustee appointed or designated in the manner provided under this Trust Agreement
unless the terms of the appointment or designation require a bond. The foregoing provisions shall apply
whether the Trustee serves alone or together with one or inure other Trustees.
ARTICLE 16
THE APPOINTMENT OF SPECIAL TRUSTEES
16.1 Power to Appoint Special Trustee, The current Trustee may appoint one or more
individuals or corporate Trustees to serve as a Special Trustee. A Special Trustee shall have all the rights
and powers granted to the Trustee under this Trust Agreement solely and exclusively with reference to the
subject matter and duties and responsibilities specified by the persons appointing the Special Trustee, such
as making discretionary distributions to certain beneficiaries (including beneficiaries who are Trustees) or
managing specific trust property.
16.2 Scope and Exclusivity of Special Trustee's Powers. While serving, a Special Trustee
shall have all the rights and powers necessary to carry out the duties and responsibilities specified with
respect to the matters under the Special Trustee's authority, including, limited by the scope of those duties
and responsibilities, all rights and powers granted to the Trustee under this Trust Agreement for the
administration and management of the trust estate. A Special Trustee also shall have all special powers
granted by the persons appointing the Special Trustee. The powers granted to the Special Trustee shall not
limit or restrict the powers granted to the Trustee, except that while the Special Trustee is serving, no other
Trustee may exercise the powers granted to the Special Trustee with respect to the subject matter reserved
exclusively to the management and discretion of the Special Trustee,
16.3 Protection Provided Special Trustee. Except as otherwise expressly provided by the
persons appointing the Special Trustee, a Special Trustee shall be entitled to all the protection provided the
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is properly exercising a power and may assume without inquiry the existence of a trust power and its proper
exercise. That third person shall be fully protected in dealing with or assisting the Trustee just as if the
Trustee has and is properly exercising the powers the Trustee purports to exercise. In addition, that person
has no duty to see to the application of any money paid or property transferred to or upon the order of one
or more Trustees.
18.13 Reliance on Representations by the Trustees. A third person dealing with the Trustee
also shall be fully protected in relying on written statements of fact, certified or declared under penalty of
perjury by any one or more of the persons who appear from the original or certified copy of this Trust
Agreement (or documents of appointment) to be a Trustee or successor Trustee, regarding the Trustee's
authority to act under this Trust Agreement, the calling of any meeting of the Trustees, the giving of any
notice of a meeting, the action taken at a meeting, and other facts concerning the trusts established under
this Trust Agreement. Anyone may rely on a copy of this Trust Agreement certified by a Trustee, by the
Trustee's legal counsel, or by a Notary Public, to be a counterpart or true copy of this Trust Agreement.
18.14 Reliance on the Authority of Trustees. No persons or organizations employed by the
Trustee or retained by the Trustee as provided in this article shall be required to oversee or supervise the
activities of the Trustee or to inquire into the Trustee's powers, authority, or discretion. Each person or
organization so employed or retained may rely implicitly upon the written instructions of the Trustee with
respect to the property and business of the trust, including instructions of the Trustee to deal directly with
investment counsel employed by the Trustee. In no event shall any person or organization so employed or
retained be liable for any act or omission of any Trustee in which that person or organization may also have
participated.
ARTICLE 19
THE POWERS OF THE TRUSTEE
Subject in all instances to his or her fiduciary duties and the limitations set forth elsewhere in this
Trust Agreement, with regard to the entire trust estate and all trusts established under this Trust Agreement,
the Trustee shall have all the powers described below, all powers granted by law (including all the powers
set forth in Probate Code §§ 16220 et seq.), and all powers reasonably necessary to carry out his or her
duties as Trustee to administer, manage, protect, and invest the trust estate. The Trustee in his or her
discretion, without count approval, authorization, or supervision, may exercise these powers except as
expressly required in this Trust Agreement.
19.1 To Accept Property. The Trustee may accept or receive additions and contributions to
the trust estate from either Trustor or any other person and hold the property in trust under the provisions of
this Trust Agreement. If the Trustee receives property from another fiduciary and if the Trustee believes the
action to be in the best interests of the trust estate, the Trustee is authorized to waive an accounting from the
fiduciary, to approve his or her actions, to consent to his or her proposed actions, and to consent to his or
her discharge,
19.2 To Disclaimer or Reject Property. The Trustee may renounce or otherwise disclaim all
or any part of any interest in property passing to the trust, by gift or bequest, and any right, power, privilege,
or discretion granted the Trustee under this Trust Agreement. The Trustee may reject any property or
interest in property passing to the trust, including property that by reason of hazardous materials or
substance the Trustee determines (after investigation at the expense of the trust) would be detrimental to the
trust purpose.
19.3 To Retain Property. The Trustee may retain trust property received at the inception of
the trust or at any other time, from either Trustor or any other person until, in the Judgment of the Trustee,
disposition or distribution of the property should be made. The property may be retained even though the
property is unproductive, is property in which a Trustee is personally interested or in which the Trustee
owns an undivided interest personally or as trustee of another trust, or there is known or later discovered to
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be hazardous materials or substances requiring remedial action pursuant to environmental laws.
Notwithstanding Probate Code §§ 16048 and 16049, the Trustee shall have no duty to dispose of any part of
the trust property included in the trust at the time of its creation, or later added to the trust by either Trustor
or another person, that would not be a proper investment for the Trustee to make. The Trustee may, without
liability, continue to hold that property. The Trustee may hold trust property in bearer form so that title may
pass by delivery, or in the name of any one Trustee or a nominee without indication of any fiduciary
capacity by the nominee. The Trustee may keep all or part of the trust property at any place within the
United States or abroad. These provisions are subject to the limitations set forth in Article 7 (The Marital
Trust) and Article 8 (Marital Deduction Provisions).
19.4 To Operate a Business. The Trustee may continue or participate in the operation of any
business or other enterprise (including a partnership as a general or limited partner) that is part of the trust
property for as long as the Trustee deems advisable, at the risk of the trust estate and not at the risk of the
Trustee. The Trustee may incorporate, dissolve, or change the form of the organization of the business or
enterprise, or operate it as a partnership or in any other form. The profits and losses from any business or
other enterprise shall be chargeable to and home by the trust, and not the Trustee. A Trustee, as an
individual, may continue to be a shareholder, director, officer, employee, or partner of any business or
enterprise in which the trust holds any interest.
19.5 To Invest and Reinvest Trust Property. The Trustee may invest and reinvest trust
property (including income and principal) in any kind of property, whether real, personal, or mixed,
including (1) real property (including leaseholds; royalty interests; interests in mines, oil and gas wells,
timberlands, and other wasting assets), (2) intangible personal property (including common and preferred
stock and all other kinds of securities (on margin or otherwise); investment company shares, mutual funds,
index funds, common trust funds (including any common trust fund under the management of a corporate
trustee) and other collective investment vehicles; interests in partnerships (whether as a general or [imited
partner); commodities; governmental obligations of every kind; obligations of corporations or
unincorporated associations; and patents, copyrights, trademarks, and other intangible rights), and (3)
tangible personal property (including precious metals, works of art, and other collectibles). The Trustee is
authorized to establish and maintain brokerage accounts, including margin accounts, for the purpose of
purchasing, acquiring, possessing, pledging, hypothecating, selling and otherwise disposing of, and
generally dealing in and with any of the foregoing types of investments.
19.6 To Administer Securities. The Trustee may purchase, exchange, or sell stocks, bonds,
futures contracts, and other securities, and puts, calls, straddles, and other options. The Trustee may
maintain brokerage accounts, including margin and commodity accounts, and in connection with such
accounts, may borrow, pledge securities, make short sales, and sell on margin or otherwise. With respect to
all securities held by in the trust estate, the `trustee may exercise the rights, powers, and privileges, and
responsibilities of an owner, including the right to vote; to give general or limited proxies; to pay calls,
assessments, and other sums; to participate in voting trusts, pooling arrangements, foreclosures,
reorganizations, consolidations, mergers, and liquidations; to deposit securities with and transfer title to any
protective or other committee; and to exchange, exercise, or sell stock subscription or conversion rights.
The Trustee may also accept and retain as an investment any securities received through the exercise of any
of the foregoing powers.
19.7 To Conduct Banking Activities. The Trustee may establish financial accounts of any
kind, including checking, money market, and savings accounts, with any bank, savings and loan association,
credit union, brokerage firm, or other financial institution (including such accounts in the banking
department of a Trustee that is a corporation or partnership). The Trustee may deposit trust funds into such
accounts, withdraw funds from such accounts, and transfer funds among such accounts. The Trustee may
designate in writing the persons, whether or not Trustees, who may conduct such banking activities, and the
financial institutions may rely, without liability, on such designations.
19.8 To Purchase and Sell Trust Property. The Trustee may buy, purchase, acquire, sell,
convey, dispose of, exchange, or otherwise transfer any trust property, or any interest in property, for cash
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or on credit, at public or private sale, with or without notice, and for the prices and upon the terms as the
Trustee determines. The Trustee may grant or acquire options and rights of first refusal involving the
acquisition or disposition of any trust property.
19.9 To Manage Trust Property, The Trustee may manage, control, divide, develop,
improve, repair, exchange, partition, change the character of, or abandon trust property or any interest in
trust property. The Trustee may enter into a lease for any purpose as lessor or lessee with or without the
option to purchase or renew and for a term within or extending beyond the term of the trust. The Trustee
may amend or extend existing leases. The Trustee may also demolish or remove buildings or other
improvements on trust property.
19-10 To Borrow Money and Encumber Trust Property. The Trustee may borrow money
for any trust purpose from any person upon such terms and conditions as may be determined by the Trustee,
and obligate the trust to make repayment from trust property, The Trus€ors or the Trustee may loan or
advance funds to the trust, and the loans or advances together with the interest charged shall be treated as a
first lien on the trust estate until repaid. The Trustee may also encumber, mortgage, or pledge trust property
for a term within or extending beyond the term of the trust in connection with the exercise of any power
vested in the Trustee, or to create restrictions, easements, or other servitudes on trust property.
19.11 Providing Guarantees. The Trustee may guarantee any indebtedness incurred by either
Trustor, or by any entity owned directly or indirectly by either Trustor or by the trust, as the Trustors may
direct.
19.12 To Make Loans. The Trustee may loan or advance trust property of any kind (including
money) for any trust purpose to any person on terms and conditions as determined by the Trustee, subject to
limitations stated in this Trust Agreement. The Trustee may make loans out of trust property to the current
beneficiary on terms and conditions that the Trustee determines are fair and reasonable under the
circumstances, and guarantee loans to the current beneficiary by encumbrances on trust property.
19.13 To Purchase Liability Insurance. The Trustee may purchase and pay the premiums on
Policies to insure the property of the trust estate against damage or loss and to insure the Trustee against
liability with respect to third persons. The premiums shall be a proper expense to be charged against the
trust.
19.14 To Purchase and Administer Life Insurance. The Trustee may purchase, own, and pay
the premiums on life insurance on the life of either Trustor, and collect the proceeds of life insurance
policies payable to the trust_ The Trustee shall have the power to compromise, arbitrate, or otherwise adjust
any claim, dispute, or controversy arising under any policy payable to the trust and shall have authority to
initiate, defend, settle, and compromise any legal proceeding necessary in the Trustee's discretion to collect
the proceeds of any policy. The Trustee's receipt to any insurer shall be a sufficient release of the insurer.
The insurer shall not be under any duty to inquire concerning the Trustee's application of the policy
proceeds.
19.15 To Pay, Contest, and Settle Claims. The Trustee may pay or contest any claim; settle a
claim by or against the trust by compromise, arbitration, or otherwise; and release, in whole or in part, any
claim belonging to the trust_
19.16 To Litigate. In accordance with his or her duties to enforce claims and defend actions as
set forth in Probate Code §§ 16010 and 16011, the Trustee may prosecute or defend actions, claims, or
proceedings for the protection of the trust estate and the Trustee in the performance of his or her duties.
19.17 To Deal with Environmental Hazards. The Trustee may deal with matters involving
the actual or threatened contamination of trust assets (whether real or personal) by hazardous substances, or
involving compliance with environmental laws and regulations, including conducting environmental
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(c) The Trustee may make repairs, alterations, and improvements, and perform the other
acts affecting trust property as authorized in Probate Code § 16229.
(d) The Trustee may develop land in the ways authorized in Probate Code § 16230.
(e) The Trustee may enter into leases and other arrangements regarding minerals as
authorized in Probate Code § 16232.
(0 The Trustee may grant or take options as authorized in Probate Code § 16233.
(g) The Trustee may exercise the powers granted in Probate Code § 16234 (voting rights),
Probate Code § 162-35 (payment of calls and assessments), Probate Code § 16236 (stock subscriptions and
conversions), and Probate Code §16237 (consent to change in form of business and participation in voting
trusts)_
(h) The Trustee may hold securities as authorized in Probate Code § 16238, and deposit
securities in a securities depository as authorized in Probate Code § 16239.
ARTICLE 20
SPECIAL DISCRETIONARY POWERS OF THE TRUSTEE
The following provisions shall apply to each of the trusts established under this Trust Agreement
20.1 To Deal with the Trustors' Estates. The Trustee may loan money to and borrow money
from, sell property to and buy property from, exchange property with, and otherwise deaf with, on
reasonable, arm's-length terms (including adequate security, fair market prices, and market rates of interest),
the Trustors' estates or the Trustees of other trusts created by the Trustors, for the purpose of providing
liquidity to the estates or trusts or for any other purpose. The Trustee shall not be obligated to make any
such loans or purchases.
20.2 To Make Payments and Distributions. Except as to income payable to the Surviving
Spouse from the Marital Trust, the Trustee shall have the discretion to make any payments or transfers of
income or principal or other sums distributable to a beneficiary in any one or more of the following ways.
The Trustee shall not be required to supervise or inquire into the application of any funds so paid or
applied, and the receipt of the payee shall be full acquittance and discharge of the Trustee. The Trustee
may withhold from distribution all or any part of any trust property, so long as the Trustee, exercising its
discretion, determines that such property may be subject to conflicting claims, tax deficiencies, or liabilities
(contingent or otherwise) properly incurred in the administration of the trust.
(a) By payment directly to the beneficiary or by deposit in any bank or similar account
designated by the beneficiary even if the beneficiary is a minor or under a legal disability, without the
intervention of a custodian, guardian, or conservator. Payments may be made directly to minor
beneficiaries who, in the Trustee's judgment, have attained sufficient age and discretion to manage their
own funds.
(b) By payment to the legally appointed guardian or conservator of the beneficiary's
person or estate or by payment for the benefit of the beneficiary to any person with whom the beneficiary
resides or to any person who has custody of the beneficiary, without the intervention of a guardian or
conservator.
(c) If the beneficiary entitled to distribution is a minor, by transferring the trust property
to a custodian for the beneficiary under the California Uniform Transfers to Minors Act, Probate Code
§3900 et seq., or a similar law of any other state in which the beneficiary or custodian resides. The
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assessments, audits, and site monitoring, and taking remedial action (whether or not required by
governmental authorities) to contain, clean up, or remove any environmental hazard.
19.18 To Pay and Allocate Trust Expenses. The Trustee may pay taxes and other assessments
imposed on the trust estate or trust income; reasonable compensation of the Trustee and of the employees
and agents of the trust; and other expenses incurred in the collection, care, management, administration, and
protection of the trust estate. In allocating the payment of expenses, the Trustee shall have the power to
determine which expenses are chargeable to income or principal or partly to each_ The Trustee is
authorized, but not directed, to allocate and charge post -death expenses incurred in the administration of the
trusts or sub -trusts to post -death income, In particular, all expenses of administration claimed as income tax
deductions may be entirely allocated to and charged against post -death income. In making these
determinations, the Trustee shall be guided by the principles set forth in the California Uniform Principal
and Income Act, but his or her final determination shall be binding.
19.19 To Hire and Employ Persons. The Trustee may hire and employ persons (including
individuals, corporations, partnerships, associations, and other companies), including accountants,
attorneys, auditors, investment advisers, appraisers, or other agents or experts, even if they are associated or
affiliated with a Tntstee, to advise or assist the Trustee in the performance of his or her duties and
obligations. The Trustee may grant discretionary authority to such persons, but may not delegate either the
administration of the trust or acts that are not delegable except as expressly provided in this Trust
Agreement.
19.20 To Maintain Custody, The Trustee may keep any or all of the trust property at any
place in California or elsewhere, within the United States or abroad, or with a depository or custodian at
those places. if no bank or trust company is acting as sole or a Cotrustee hereunder, the Trustee is
authorized to appoint a bank or trust company as custodian for securities and any other trust assets. Any
appointment shall terminate when a batik or trust company begins to serve as sole or as a Cotrustee under
this Trust Agreement. The custodian shall keep the deposited property; collect and receive the income and
principal; and hold, invest, disburse, or otherwise dispose of the property or its proceeds (specifically
including selling and purchasing securities and delivering securities sold and receiving securities purchased)
upon the order of the Trustee. The custodian shall not be liable to any person interested in the trust for any
action taken pursuant to the order or instructions of the Trustee or his or her authorized agents,
19.21 To Use a Nominee. The Trustee may hold securities or other property of the trust estate
in the name of the Trustee, in the name of a nominee, or in street name accounts with brokers, or in the
name of custodian (or its nominees) selected by the Trustee, with or without disclosure of this Trust
Agreement. The Trustee shall be responsible for the acts of such custodian, broker, or nominee affecting
such properly. The Trustee may also acquire and retain securities in unregistered form so that ownership
passes by delivery.
19.22 To Execute and Deliver Instruments. The Trustee may execute and deliver all
documents and instruments (including checks withdrawing or disbursing trust funds, stock powers, deeds
and other conveyances, receipts, releases, contracts, and other agreements and transfer documents) which
are needed to accomplish or facilitate the exercise of the powers vested in the Trustee, and to disclose the
provisions of this Trust Agreement whenever in the Trustee's discretion disclosure is appropriate.
19.23 Other Powers.
(a) The Trustee may invest in obligations of the United States Government as authorized
in Probate Code § 16224.
(b) The Trustce may deposit trust funds at reasonable interest in any of the accounts
listed in Probate Code § 16225, whether or not the account is insured by a government agency or
collateralized. The accounts may be maintained in the name of any one of the Trustees or in the name of a
nominee.
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custodian shall be named by the Trustee, and may, but need not be, the beneficiary's parent or legal
guardian or person already serving as custodian for other property, The Trustee shall provide that the trust
property shall be held under the custodianship until the minor reaches a certain age selected by the Trustee,
but not past age 25 or the maximum age then allowed under the applicable Uniform Transfers to Mirrors
Act. Alternatively, the Trustee may deposit the payment for the beneficiary in a savings or similar account
in the minor's name payable to the minor when he or she reaches age 18, or the Trustee may distribute the
share to the Trustee of any other trust maintained for the minor, provided no other person will become
entitled to any interest in the funds, and all the accumulated income and principal of the funds will be
distributed to the minor when he or she reaches age 18 or, upon the minor's death, to his or her estate.
(d) By payment to any person or organization furnishing health care, education,
maintenance, or support of the beneficiary.
(c) By making expenditures directly for the benefit of the beneficiary or for the
reasonable health, education, maintenance, and support of persons whom the beneficiary has a legal
obligation to support.
(f) By purchasing an annuity contract or other property for the benefit of a beneficiary
entitled to receive a distribution.
20.3 To Sell Trust Assets. The Trustee may sell trust assets to obtain cash with which to pay
the Trustors' debts, income taxes, Estate taxes, expenses of administration, and other liabilities of the trust,
or to satisfy pecuniary gifts provided for under this Trust Agreement. The Trustee's selection of assets to be
sold for these purposes, and the tax effects of that selection, shall not be subject to question by any
beneficiary. Property, assets, or funds otherwise excludable from a Trustor's gross estate for federal estate
tax purposes shall not be used to make any of these payments.
20.4 To Postpone Distributions. Notwithstanding other provisions of this Trust Agreement,
the Trustee shall have the power to postpone the distribution of any fractional portion or part of the
principal of any trust estate or of an entire trust estate of any trust created under this Trust Agreement for
any person other than either Trustor if the Trttstee determines that there is a compelling reason to postpone
the distribution. Compelling reasons shall include, but are not limited to, a serious disability, drug addiction
or dependency, a pending divorce, a potential financial difficulty, pending or threatened litigation, a serious
tax disadvantage, or similar substantial cause affecting the beneficiary who otherwise would be entitled to
the distribution. In that event, the distribution from or termination of any trust may be postponed, and any
postponement may be continued from time to time, up to and including the entire lifetime of the beneficiary.
During the postponement, the retained portion or part of the trust estate shall be administered under the
same terms as applied immediately prior to the postponement.
20.5 To Determine Values and Allocate Property. The Trustee, in his or her discretion,
shall determine the valuations of trust property for purposes of divisions, allocations, and distributions, and
those valuations, reasonably determined, shall be Coal and binding on all beneficiaries and other persons
having an interest in the trust. The Trustee may adjust any valuations retroactively if a different valuation is
finally determined for federal estate tax purposes. The Trustee is authorized to effect the division,
allocation, or distribution of trust property in divided or undivided interests, in cash or in kind or partly in
both, pro rata or non -pro rata, as the Trustee shall determine, and to sell any property in connection with the
division, allocation, or distribution if theTrustee deems that action necessary or appropriate. A distribution
in kind may be made pro rata or non -pro rata, and a beneficiary may receive all or a portion of any asset as
part of a distribution or allocation in kind. The Trustee may allocate or distribute property (or the right to
receive property) which is subject to estate tax and federal income tax as income in respect of a decedent
("IRD") to any one or more of the trusts created under this Trust Agreement or the beneficiaries of any
trust; in such case, other trust assets shall be used to equalize any disproportionate allocation or distribution
of items of IRD to any one or more trusts or beneficiaries. In making such divisions, allocations, and
distributions, the Trustee is not required to consider the income taxes bases of such assets or the potential
income tax consequences to the beneficiaries receiving the assets.
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20.6 To Make Allocations between Principal and Income. The Trustee shall determine
what is principal or income of the trust estate, and what items shall be charged or credited to principal or
income, or both. For example, Trustee fees, attorney's fees, accounting fees, and custodian fees shall be
charged against income or principal, or both, in such proportions (or all against either income or principal)
as the Trustee determines. In exercising such discretion, the Trustee may use the California Uniform
Principal and Income Act as a guide.
The Trustee shall not be required to establish any reserves. The Trustee may, however, establish
reserves for depreciation, depletion, amortization, obsolescence, or repair and improvement of capital
assets; for operating capital; or to amortize loans from income. If the Trustee determines to establish a
reserve, he or she may fund the reserve by appropriate charges against the income of the trust estate, in such
amounts as the 'Trustee determines. If any security is purchased for a premium or at a discount, such
premium or discount may be amortized in a reasonable manner. In addition, the Trustee may establish such
reserves as he or she considers necessary for the payment of all taxes.
20.7 To Make QTIP Election. The Trustee is authorized to make a full or partial "qualified
terminable interest property" ("QTIP") election under I.R.C. §2056(b)(7) with respect to property to be
administered under the provisions of the Marital Trust for the purpose of treating such property as qualified
terminable interest property for federal estate tax purposes and obtaining a marital deduction in the
Deceased Spouse's estate. If a QTIP election is made as to less than all of the property to be administered
under the provisions of the Marital Trust, the specific portion subject to the QTIP election shall he
expressed as a fraction or percentage of the Marital Trust and may be defined by means of a formula, The
Trustee shall divide the property into at least two trusts, with one or more separate trusts holding the portion
with respect to which the QTIP election has been made and the other separate trusts holding the portion
with respect to which a QTIP election has not been made. The Trustors intend that the specific portion
made subject to the election shall qualify for the federal estate tax marital deduction in the Deceased
Spouse's estate.
20.8 To Retain or Purchase Unproductive or Under -productive Property. The Trustee
may retain, purchase, or otherwise acquire property that is unproductive or under -productive of current
income. Because of the substantial potential for appreciation presented by unproductive assets such as
unimproved real estate and growth stocks, the Trustors want the Trustee to have broad discretion to acquire
those assets. The Trustee shall have a duty to make the trust property productive (Probate Code § 36007),
but property may be made productive by appreciation in value as well as by the production of income. The
Trustee may acquire and retain assets for appreciation as part of portfolio that produces a reasonable level
of current income. These provisions are subject to the limitations set forth in Article 7 (The Marital Trust)
and Article 8 (Marital Deduction Provisions).
20.9 To Invest Trust Assets Together. Each of the trusts and trust shares created under this
Trust Agreement shall be a separate trust for trust, accounting, tax, and all other purposes. The Trustee
shall keep an account for each trust and may, but shall not be required to, segregate trust assets. Rather, the
Trustee may invest together the property of the separate trusts, allotting to each separate trust its
proportionate undivided interest in the collective fund. The undivided interest always shall be equal to that
trust's proportionate contribution to the mingled assets.
20.10 To Consolidate Trusts. If a trust is to be established or exists under this Trust
Agreement for a beneficiary for whom another trust has been established under this Trust Agreement, the
Trustee may allocate the property for the one trust to the other trust. Similarly, if either Trustor has
established a trust for a beneficiary for whom a trust is to be established or exists under this Trust
Agreement, and the diapositive provisions of that trust are substantially the same as the dispositive
provisions of the trust to be established or existing under this Trust Agreement, the Trustee may transfer the
property for the trust to be established or existing under this Trust Agreement to the Trustee of the other
trust, to be held on the terms of that other trust. Further, where the dispositive provisions of each trust or
trust share are substantially similar, the Trustee shall have the discretion to combine any trusts or trust
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shares into one trust because of changed circumstances, litigation among beneficiaries, administrative
difficulties, or other reasons suggesting a need for such a combination. A combination must not materially
impair the interests of any beneficiaries. Trusts may be combined or consolidated whether created inter
vivos or by will, by the same or different trust instruments, by the same or different Trustors, whether the
Trustee is the same, and regardless of where the trusts were created or administered. When combining
trusts, however, the Trustee shall only combine Exempt Trusts with other Exempt Trusts.
20.11 To Divide Trusts. With respect to all trusts established under this Trust Agreement, the
Trustee shall have the discretionary power, exercisable without need of court approval, to divide the trust
into two or more separate trusts for any purpose, including, without limitation, any of the following
purposes.
(a) To create one or more separate trusts to hold the qualified and nonqualified portions
of any trust where an election has been property made to qualify a portion but not all of the trust for the
federal estate tax marital deduction-
(b) To create one or more separate trusts that qualify as a qualified S corporation
shareholder or as any other type of special trust provided for under the LR.C.
(c) To create one or more separate trusts with assets completely exempt from any
application of any generation -skipping transfer tax. If the Trustee exercises the election provided by I.R.C.
§2652(a)(3) as to any trust, the Trustee is authorized in his or her discretion to hold the property of the trust
in two separate fractional share trusts, one in an amount equal to the Deceased Spouse's GST exemption
allocated to the trust and one in an amount equal to the balance of the property of the trust.
(d) To create one or more separate trusts to accomplish other proper tax planning
purposes.
(e) To create a separate trust as to any share or portion of a trust disclaimed by a
beneficiary, and to sever the disclaimed portion to be administered as a separate trust.
(f) To create a separate trust for each current income beneficiary of a trust or trust share,
and to divide any trust along family lines to be administered as separate trusts.
(g) To create one or more separate trusts because of changed circumstances, litigation
among beneficiaries, administrative difficulties, or other reasons suggesting a need for a division.
The allocation of property between or among separate trusts created from a single trust or trust
share may be unequal in amount and in the type of assets, and the division may be non -pro rata. The fair
market values of the trust property at the date or dates of allocation shall be used in making the allocations.
All trusts so established shall be designated and named by the Trustee and the property allocated to the
divided trusts shall be held and administered under the same terms and provisions as would have applied to
the undivided trust or trust share. With regard to planning for the marital deduction, the QTIR election, the
S corporation election, the GST tax inclusion ratio, the reverse QTIP election, or other tax purposes, this
power to divide trusts shall be exercised in a manner that complies with the I.R.C. and applicable Treasury
regulations.
20.12 To Terminate Trusts. The Trustors recognize that circumstances may change so that
continuation of a trust provided for in this Trust Agreement may not be in the best interests of irs current
beneficiary, taking into account all relevant factors, including the costs of administration and tax
consequences. Accordingly, after the death of the Surviving Spouse, the Trustee may for any reason
terminate any trust created under this Trust Agreement and distribute any remaining trust estate, including
principal and widistributed income, to any one or more of the current beneficiaries or the presumptive
remainder beneficiaries of the trust in those proportions as the Trustee determines, in a manner that
conforms as nearly as possible to the Trustors' intention. In exercising his or her discretion to terminate a
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trust, the Trustee may, but shall have no obligation to, consider the interests of any person other than the
current income beneficiary, including any remainder beneficiaries.
If the Trustee determines that the size of a trust does not warrant the cost of continuing that trust or
that continued administration of any trust would be impractical for any reason, the Trustee, without further
responsibility or liability, may transfer that trust property outright to the person or persons then authorized
or entitled to the income from it. If the principal of the trust has a fair market value less than fifty thousand
dollars ($50,000), a decision of the Trustee to distribute the trust shall not be subject to question by anyone,
The existence of spendthrift or similar protective provisions in this Trust Agreement shall not
make this section inapplicable. A Trustee may not terminate a trust under this section if the Trustee is a
beneficiary of the trust or has a duty of support for the beneficiary of the trust.
20,13 To Permit Use of Personal Residence. The Trustee is authorized to permit the Trustors
and, following their deaths, the current beneficiary of a trust to occupy rent-free any residence held in the
trust and to use the furnishings in the residence, The Trustee shall pay from the trust all taxes, insurance
premiums, assessments, costs of repairs, and maintenance for these residences. The Trustee may sell the
residence and, in his or her discretion, acquire other residences from trust property. The Trustee may also
permit the guardian of a minor current beneficiary of the trust, along with the guardian's family, to reside
rent free with the minor beneficiary in the residence so long as the minor beneficiary is entitled to reside
there.
20.14 To Maintain Residence. The assets of the Marital Trust shall be used by the Trustee to
maintain a residence for the Surviving Spouse, including all adjacent land owned by the Trustors and the
furnishings in the residence. The Trustee shall pay from income or principal, or both, all liens and
encumbrances on the residence; all taxes, insurance premiums, and costs for repairs, maintenance, and
services rendered for the residence; and all costs for utilities supplied to the residence, including telephone
and cable. The Trustee shall also pay the expenses incurred by the Surviving Spouse to employ persons to
work in or about the residence.
The Trustee, with the approval of the Surviving Spouse, may substitute another residence for that
owned by the trust. No new residence shall cost more to acquire than the greater of (1) the acquisition cost
to the trust of the then -current residence or (2) the amount actually realized upon the sale of the residence.
20.15 To Hold Personal Articles in Trust. If the Trustee of any trust receives furniture or
furnishings, household items, clothing and other personal effects, or vehicles or accessories to vehicles, the
Trustee may distribute that property to the current beneficiary or beneficiaries of the trust, at the times and
in the manner the Trustee, in his or her discretion, determines to be proper. In addition, the Trustee may
allow the current beneficiaries to use this property. Neither the Trustee nor any beneficiary who uses this
property shall be liable to other beneficiaries for permitting the use of this property or for the loss or
damage of this property.
20.16 To Make Distributions from Qualified S Trusts. The Trustee is authorized to
distribute to the beneficiary of any trust that has made a qualified S Corporation election under I.R.C. § 1361
et seq. from income or principal, or both, funds sufficient to pay the federal and state income taxes imposed
on the beneficiaries for the income or gain passing to the beneficiary from the S Corporation. No such
distribution is required.
ARTICLE 21
SPECIAL. PROVISIONS FOR INVESTMENT COUNSEL
The Trustee may employ investment counsel to serve in an advisory capacity to the Trustee or
employ discretionary investment counsel to manage with full discretion the investment of all or any part of
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SOUTHERN
ENVIRONMENTAL
NVRONMENTAL
LAW
CENTER
Via Email
48 Patton Avenue, Suite 304
Asheville, NC 28801
October 27, 2023
Charles Weaver, Sara Bassett, and Caroline Robinson
N.C. Dept. of Environmental Quality
Division of Water Resources
Water Quality Permitting Section
1617 Mail Service Center
Raleigh, NC 27699-1617
[e-mail]
Telephone [phone]
Facsimile 828-258-2024
Re: Application of the trout waters temperature standard in draft NPDES Permit
Nos. NC0037737, NC0038687, NC0057193, NCO050610 and NC0058891.
Dear Mr. Weaver, Ms. Bassett, and Ms. Robinson:
Please accept the following comments submitted on behalf of MountainTrue, North
Carolina Trout Unlimited State Council, North Carolina Wildlife Federation, Watauga
Riverkeeper, and the Southern Environmental Law Center related to the North Carolina
Department of Environmental Quality's ("DEQ") failure to apply the required trout waters
temperature standard in five recently noticed draft National Pollutant Discharge Elimination
System ("NPDES") permits: Draft Permit Nos. NCO037737 (Nantahala Village WWTP),
NCO038687 (Singing Waters Camping Resort), NCO057193 (Nantahala Outdoor Center
WWTP), NCO050610 (The Ponds WWTP) and NCO058891 (Valley Creek WWTP). These
permits would all authorize discharges into designated trout waters.1
Several of these facilities have a lengthy history of noncompliance with NPDES permit
terms. We appreciate DEQ's attention to those problems at facilities like The Ponds which have
made important improvements over the last few years. Nevertheless, proper application of the
trout waters temperature standard in these permits is critical to protecting trout populations in
North Carolina —particularly given histories of noncompliance at several of the facilities.
Unfortunately, all five draft permits leave the affected populations at risk by failing to ensure
trout streams remain sufficiently cool. DEQ must correct this error in the final permits.
1 See NPDES Draft Permit Nos. NCO037737 (Nantahala Village WWTP) (Sept. 26, 2023), at 2 (noting discharge
into an unnamed tributary of the Nantahala River, a Class B trout water in the Little Tennessee River Basin;
NCO038687 (Singing Waters Camping Resort) (Sept. 26, 2023), at 2 (noting discharge into Trout Creek, a WS-III
trout water in the Little Tennessee River Basin); NCO057193 (Nantahala Outdoor Center WWTP) (Sept. 26, 2023),
at 2 (noting discharge into the Nantahala River, a Class B trout water in the Little Tennessee River Basin); NPDES
Draft Permit No. NCO050610 (The Ponds WWTP) (Oct. 10, 2023), at 2 (noting discharge into the Watauga River, a
Class B trout water and High Quality Water in the Watauga River Basin); and NPDES Draft Permit No. NCO058891
(Valley Creek WWTP) (Oct. 10, 2023), at 2 (noting discharge into Valley Creek, a Class C trout water in the
Watauga River Basin).
Charlottesville Chapel Hill Atlanta Asheville Birmingham Charleston Nashville Richmond Washington, DC

DocuSign Envelope ID: 01 12AFBO-ODDC-45C3-928A-319FD3B641 C5
I. Trout require cold, clean water to survive.
Keeping water temperature in designated trout waters below certain thresholds is
critically important because North Carolina's three species of trout —brook trout, brown trout,
and rainbow trout —require cold, clean, oxygen -rich water to survive and thrive. Water
temperature for these trout generally needs to be kept below 20 °C (68 OF).2 Unfortunately, past
and ongoing land management practices and wastewater discharges threaten trout habitats,
including by increasing stream temperatures. As we explained in our comments on North
Carolina's draft 2022 Clean Water Act Section 303(d) list, numerous trout streams routinely
exceed safe water temperatures for trout.3
Climate change is exacerbating this problem by placing additional thermal pressure on
water temperatures. By 2060, western North Carolina is predicted to see 10-20 more days each
year with air temperatures above 35 °C (95 OF), increasing the potential for water temperatures to
rise above 21.1 °C (70 OF) —levels that can be lethal to trout.4 This combination of past habitat
loss, ongoing poor land management practices, and climate change poses an existential threat to
many western North Carolina trout populations.
Declines in trout populations —driven by increasing stream temperatures or otherwise
will hurt local economies. The total economic benefit of trout fishing in North Carolina is
estimated at $1.38 billion annually, supporting nearly 11,808 jobs.5 If trout habitats are further
reduced, these economic benefits will be at risk. Overall, stream temperatures in North Carolina
are increasing, and this trajectory is predicted to continue under a changing climate. To protect
trout populations and the businesses that rely on them, North Carolina must take proactive steps
to ensure trout waters remain sufficiently cold.
II. North Carolina promulgated a temperature water quality standard to protect
trout.
Recognizing that trout require cold water, North Carolina exercised its authority under
the Clean Water Act to develop a temperature water quality standard designed to keep trout
streams cold. The Clean Water Act requires states to designate "uses" of waterbodies and
promulgate standards to protect those uses. See 33 U.S.C. § 1313; 40 C.F.R. § 131.10; N.C. Gen.
Stat. § 143-214.1. All waterbodies in North Carolina are subject to a temperature standard to
protect their associated designated use. 15A N.C. Admin. Code 2B.0211(18). Some North
Carolina waterbodies have been assigned a "trout waters" use. See 15A N.C. Admin. Code
2 Trout Species of North Carolina, Fly Fishing NC (accessed Dec. 16, 2022), https://www flyfishingnc.com/trout-
species-of-north-carolina.
s S. Envtl. L. Ctr., Comments on North Carolina's Draft 2022 § 303(d) List (Feb. 28, 2022).
4 Emma Johnson, Climate Change Challenges Trout Industry in North Carolina, Carolina Public Press (Feb. 17,
2021), https:Hcarolinapublicpress.org/42527/climate-change-challenges-trout-industry-in-north-carolina/. See also
Kunkel, K.E., et al., North Carolina Climate Science Report (2020), available at
https://ncics. org/wpcontent/uploads/2020/ 10/NC_Climate_Science_Report_FullReport_Final_revised_September2O
20.pdf.
5 N.C. Wildlife Res. Comm'n, Socioeconomic Impact of Trout Fishing in North Carolina Survey
(2022), available at https://www ncwildlifc.org/Fishing/Fishing-in-North-Carolina#87842458-mountain-trout-
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213.0301(b)(3) (explaining trout waters classification); 40 C.F.R. § 131.10(c) ("States may adopt
sub -categories of a use and set the appropriate criteria to reflect varying needs of such sub-
categories of uses, for instance, to differentiate between cold water and warm water fisheries.").
The temperature standard —for both trout waters and non -trout watersprovides that water
temperature is:
not to exceed 2.8 degrees C (5.04 degrees F) above the natural water temperature,
and in no case to exceed 29 degrees C (84.2 degrees F) for mountain and upper
piedmont waters and 32 degrees C (89.6 degrees F) for lower piedmont and coastal
plain waters; the temperature for trout waters shall not be increased by more than
.5 degrees C (0.9 degrees F) due to the discharge of heated liquids, but in no case
to exceed 20 degrees C (68 degrees F).
15A N.C. Admin. Code 02B .0211(18).
The standard has two partsa delta limit and an absolute limit. In non -trout waters, the
delta limit prohibits an increase attributable to a discharger of more than 2.8 °C above the natural
water temperature. The absolute limit provides that temperature shall "in no case" exceed 29 °C
in mountain and upper piedmont waters and 32 °C in lower piedmont and coastal plain waters
regardless of the presence of permitted dischargers.
The trout waters standard follows this same structure: Stream temperature may not be
increased "by more than .5 degrees C ... due to the discharge of heated liquids" but "in no case"
shall stream temperature exceed 20 °C. This makes sense because keeping trout waters below
20 'C—regardless of the presence of permitted dischargers —is critical to sustaining healthy trout
populations.
North Carolina's temperature standard, including for trout waters, is implemented in part
through NPDES permits that regulate point source discharges by setting limits and monitoring
requirements for a variety of water quality characteristics. 33 U.S.C. § 1342(a). State agencies
with delegated authority to administer the NPDES program, such as DEQ, are responsible for
ensuring NPDES permits identify and apply the correct water quality limits for the receiving
waterbody.
In issuing a recent NPDES permit for a discharge into a designated trout water without
the required temperature standards, DEQ explained it had concluded that "effluent from 100%
domestic WWTPs [is] not a `heated liquid' as reference[d] in the rule" and, presumably, that the
trout waters temperature standard therefore did not apply.6 This conclusion is unsupported by the
text and the purpose of the rule; it is also irrelevant to the absolute limit set by the standard:
Temperature in trout waters shall "in no case ... exceed 20 degrees C." 15A N.C. Admin. Code
2B.0211(18) (emphasis added). DEQ must include limitations in permits to ensure that
discharges do not cause or contribute to an exceedance of the 20 °C standard, even if that
effluent is not purposefully heated prior to discharge. In the final fact sheet for these permits or
6 Fact Sheet for NPDES Permit No. NCO067318 (Jan. 13, 2023).
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elsewhere, we respectfully request that DEQ explain how it determined that "effluent from 100%
domestic WWTPs" is not subject to the trout waters temperature standard.
III. DEQ must ensure all five draft NPDES permits comply with the trout waters
temperature standard.
As we have explained to the agency before, to comply with the Clean Water Act and state
water quality standards DEQ must ensure all five draft NPDES permits facilitate compliance
with the temperature limits necessary to protect trout waters. The draft permits out for comment
currently contain no language to prevent exceedances of those standards, despite in two cases
(Singing Waters and Nantahala Outdoor Center) newly including in -stream monitoring
requirements for temperature, in three cases (Singing Waters, Nantahala Outdoor Center, and
Nantahala Village) newly including Dissolved Oxygen monitoring requirements,8 and in all five
cases newly including turbidity monitoring requirements. We applaud DEQ for taking notice of
the importance of monitoring for the protection of trout waters. That said, four of the five draft
permits only require weekly effluent temperature monitoring.9 All five permits should, like the
Nantahala Village draft permit, require daily effluent monitoring for temperature. But most
importantly, the final documents must include permit limits to prevent violations of water quality
standards, including the trout waters temperature standard.10
The draft permit for the Nantahala Outdoor Center WWTP exemplifies why permit limits
for temperature are necessary. Nantahala Outdoor Center's application materials indicate an
estimated summer maximum effluent temperature of 29.1 °C, far exceeding the 20-degree
maximum set for trout waters.11 In fact, the discharge's average summer effluent temperature is
24.26 °C.12 Similarly, the permit materials for Nantahala Villagea facility DEQ describes as
"habitually non -compliant" —indicate an average summer temperature of 21.34 °C and a
maximum summer temperature of 26 °C.13 There is therefore a substantial risk that both
dischargers will violate both the delta and absolute temperature limits applicable to discharges to
trout waters.
The draft permits for Nantahala Village WWTP, The Ponds WWTP, and Valley Creek WWTP continue to include
temperature monitoring standards imposed in prior permitting cycles.
a The draft permits for The Ponds WWTP and Valley Creek WWTP continue to include Dissolved Oxygen
monitoring standards imposed in prior permitting cycles.
9 Draft NPDES Permit No. NCO038687, at 3; Draft NPDES Permit No. NC0057193, at 3; Draft NPDES Permit No.
NCO050610, at 3; and Draft NPDES Permit No. NCO058891, at 3 (all setting "weekly" frequency for both effluent
and in -stream temperature monitoring). The Draft Permit for the Valley Creek WWTP does include daily effluent
temperature monitoring "[d]uring the period beginning after expansion above 0.01 MGD and lasting until permit
expiration." Draft NPDES Permit No. NCO058891, at 4. However, currently —and until this expansion happens —
only weekly monitoring is required.
10 We applaud DEQ for including an appropriate water temperature standard for the Valley Creek WWTP "after
expansion above 0.01 MGD and lasting until permit expiration." Draft NPDES Permit No. NC0058891, at 4. The
language included in that document's first footnote is a good example of what should be included in NPDES permits
for all discharges, including Valley Creek WWTP's current effluent discharge ("This discharge temperature shall
not increase the ambient instream temperature by more than 0.5° C (0.9° F), and in no case exceed 20 °C (68F)").
11 Renewal Application for NPDES Permit No. NCO057193 (Nantahala Outdoor Center WWTP) (April 11, 2022), at
it.
12 Id.
" Renewal Application for NPDES Permit No. NCO037737 (Nantahala Village WWTP) (March 8, 2023), at 11.
al

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In addition, DEQ has already recognized an especially acute need for strict temperature
limits in Permit Nos. NCO050610 and NC0058891, which both discharge into the Watauga River
Basin. DEQ has identified that "[m]ajor water quality and aquatic habitat stressors identified
across the Watauga River Basin include ... elevated water temperature."14 The temperature
limits discussed above are necessary to mitigate this "major stressor" in the watershed.
To be clear, DEQ has no authority to issue NPDES permits that do not ensure compliance
with water quality standards, including the trout waters temperature standard. See 33 U.S.C. §
1311(b)(1)(C) (requiring NPDES permits to include limitations "necessary to meet water quality
standards"); 40 C.F.R. § 122.44(d)(1). Where draft permits fail to ensure compliance, they must
be revised.
Incorporating the trout waters temperature standard into permits is also important because
DEQ has failed to correctly apply this standard when preparing its Clean Water Act Section
303(d) list. Section 303(d) requires states to identify waterbodies that are not meeting water
quality standards, investigate the reasons for noncompliance, and develop a plan to remediate
those problems. For several years, DEQ has wrongly applied in the Section 303(d) context the
water quality temperature standard for mountain waters (29 °C) to designated trout waters
protected by the 20 °C standard.15 This wrongful application extends to the Nantahala River and
the Watauga River.16 The 2022 303(d) Integrated Report does not disclose which standard DEQ
applied to Trout Creek nor Valley Creek. But the combination of these two errors —failure to
include temperature standards in NPDES permits and failure to assess compliance with the
correct temperature standard in the Section 303(d) context —generally risks jeopardizing trout
populations.
In summary, before finalizing any of these five permits, DEQ must ensure they facilitate
compliance with the water quality temperature standard for trout waters. The most
straightforward and thorough approach is to include language DEQ has already properly applied
to other trout water discharge permits:
"The instream temperature shall not be increased by more than 0.5 degrees C (0.9
degrees F) due to the discharge of heated liquids, but in no case to exceed 20
degrees C (68 degrees F). If the stream temperature exceeds 20 degrees C due to
natural background conditions, the effluent cannot cause any increase in instream
water temperature."
This expression of the temperature standard, found in the most recent draft NPDES
permit for the Buffalo Meadows WWTP, NPDES Permit No. NCO030325 (and others), correctly
requires permittees to cause no further increase in temperature when stream temperature already
exceeds trout water standards.
14 "Watauga River Basin Restoration Priorities," N. CAROLINA DEP'T OF ENv'T QUALITY (2009), at 3,
https://www. deq.nc. gov/mitigation-services/publicfolder/learn-about/core-processes/watershed-planning/watauga-
river-basin/watauga-rbrp-2009/download.
15 See supra note 3.
16 North Carolina Integrated Report (2022), at 519, 1035.
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IV. Conclusion
North Carolina has some of the best and most at -risk trout habitat in the eastern United
States. Ensuring viable trout populations persist in the future requires keeping trout streams clean
and cold. To that end, DEQ must forthrightly apply the trout waters temperature standard in the
final versions of NPDES Permit Nos. NC0037737, NC0038687, NC0057193, NCO050610 and
NC0058891.
Please notify Henry Gargan at hgargangselcnc.org or 828-258-2023 when DEQ issues
final versions of these NPDES permits. We remain available as always to discuss our concerns.
Sincerely,
Henry Gargan
Associate Attorney
Southern Environmental Law Center
hga^rgannselcnc.org
Patrick Hunter
Managing Attorney
Southern Environmental Law Center
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