The following editorial appeared in the NH Union Leader and Conway Daily Sun.

A business came to Effingham five years ago with a plan to pump gas in a location where town law prohibits gas stations because a spill would threaten the Ossipee Aquifer, the drinking water source for 11 communities.

A handful of Effingham residents opposed the plan and said so. But most sat on the sidelines and left discussions about the environmental risk up to conservation organizations and officials of neighboring towns.

Opponents of the plan said that gas spills are a fact of life at gas stations no matter how good the equipment is. The consequences of a spill at that particular site would be catastrophic, they argued, because of the property’s highly transmissible soil.

But their arguments were not enough. The N.H. Supreme Court this month upheld the town’s decision to grant a zoning variance to allow the gas station to be built.

The approved development plan contains safeguards that the opponents fought hard to obtain. For example, untreated gas station runoff will not be allowed to drain into wetlands and enter Phillips Brook, which flows into Ossipee Lake. That was a feature of the original plan.

But improvements to the plan don’t change the fact that Effingham officials created a new environmental risk where one did not previously exist. The state’s highest court has now affirmed the town’s right to do so.

The next question is what the other 110 New Hampshire towns with groundwater protection ordinances will learn from what happened in Effingham.

Fear of a recurrence elsewhere is not misguided. It was raised by a member of Madison’s Planning Board at one of the gas station public hearings. It has also been discussed privately by town officials in our area and beyond.

An ambitious developer, complacent municipal officials, and counterintuitive interpretations of state regulations created the “Effingham Exception” — approval of a legal carve-out to an established ordinance in order to allow a prohibited use to become a permitted use even if it creates the kind of environmental risk the ordinance was created to prevent.

Preventing another such Effingham Exception requires three things.

The first is to stop thinking that it can’t happen in your town. Some of the Effingham residents who pushed for the town to adopt groundwater protections more than a decade ago were among the zoning board and planning board members who approved the gas station. Things change, people change; expect it can happen.

Second, we need to recognize that we can’t count on the state to help us defend our local rules because DES has no legal authority over local groundwater protection ordinances. DES is also prone to interpreting state regulations in ways that undermine their purpose.

A case in point is the DES position that a former underground gas tank site is still a gas tank site even if the tanks were removed years ago and the site was classified as “permanently closed.” That particular interpretation allowed the Effingham developer to install new underground gas tanks as if they were replacement tanks, meaning they could be closer to the property’s public water supply well. Thus was the regulation’s intent subverted.

Third, the Effingham Exception revealed gaps in communication with local officials. The applicant was required to provide the town with a copy of the plan it filed with DES so it could be reviewed against local regulations. But there is no requirement to confirm that the town received it.

Effingham officials claimed they did not know about the gas station proposal until after DES approved the installation plan. When the developer’s agents arrived in town with their state permit, they were in a hurry and unhappy; the town was unprepared.

In haste, Effingham’s ZBA rushed through an approval that violated the town’s groundwater protection ordinance. It then corrected the error, but not by reversing its decision. Instead, it granted a variance that relieved the applicant from having to comply with the prohibition.

The Effingham Exception has created a precedent that makes a repeat elsewhere seem inevitable, but it need not remain so.

Requiring an applicant to obtain local approvals for risky land uses before seeking DES approval makes abundant sense. It would make local regulations a top consideration. It would also remind town officials that they, not DES, are responsible for protecting drinking water.

Municipal officials should have a higher standard for allowing prohibited uses in groundwater protection zones. The standards used to decide if a shed can be built close to a lot line are insufficient when the issue is a gas station proposed for a former gravel pit on highly transmissive soil above a regional aquifer.

The bottom line is this: Effingham’s long-standing groundwater protection ordinance failed to stop officials from allowing a developer to create a new threat to drinking water.

Developers across the state will take notice of the Effingham Exception. Municipal officials from towns with drinking water ordinances should also take notice.

David L. Smith is co-founder of non-profit Ossipee Lake Alliance, which is based in Freedom.