Hawaii Superferry would have to give "unconditional acceptance" to operating restrictions that protect whales and prevent the spread of invasive species in exchange for being allowed to resume ferry service while the state conducts an environmental review, according to a potential Superferry compromise.

The Lingle administration would impose the conditions and they would not be subject to judicial or administrative review. The state Legislature, however, would have the right to add conditions later if lawmakers were not satisfied.

State Attorney General Mark Bennett shared the draft with state House and Senate Democrats over the weekend and lawmakers are reviewing it as they consider whether to back a special session to save Superferry. The draft discusses the necessary balance needed to give Superferry the chance to operate while protecting the environment during the one to two years it could take to complete a full environmental impact statement.

Lawmakers are also discussing changes to a proposed 17-member task force of state, county, environmental and business leaders that would examine the Superferry project and report back to the Legislature before the 2009 session. Lawmakers are thinking about making the task force more like a community oversight committee that would monitor the Superferry and perhaps give lawmakers more frequent updates.

House and Senate Democrats said they would demand conditions to protect whales and other marine mammals and prevent the spread of invasive species in return for overturning a Maui court ruling that has barred the Superferry from Kahului Harbor during the environmental review.

"The mitigation measures are going to be part of this bill. The Senate is very firm on that. So we have to figure out a way to do that to get this thing up and running," said state Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha). "We're exploring all possibilities."

State House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), said House and Senate majority attorneys are working on a draft.

"We've gone from home plate to first base. We have three more bases to visit — second, third and home," Say said.

John Garibaldi, the Superferry's president and chief executive officer, and Tig Krekel, vice chairman of J.F. Lehman & Co., the project's main investor, met privately yesterday with several senators after criticism last week from Senate leaders that Superferry had been communicating with the Legislature mostly through its lobbyists.

Lobbyists distributed brochures and binders to lawmakers yesterday explaining the Superferry's whale avoidance, invasive species and traffic policies.

"They're good constructive sessions," Krekel told reporters afterward but, like Garibaldi, he would not elaborate on what was being discussed.

"We're just getting information out on what our operation will be like," Garibaldi said.

State Sen. Les Ihara Jr., D-9th (Kapahulu, Kaimuki, Palolo), said he asked Garibaldi and Krekel about whether they thought it was a financial risk to invest in the project when they knew the state's February 2005 decision to exempt it from an environmental assessment could be challenged in court. "(Krekel) did acknowledge that there was a risk and he took it," Ihara said. "He as an investor as well as the board."

Ihara also said that Krekel told him the ferry was in demand and would be moved to another location if it were blocked from service in the Islands.

Ihara said he would support helping the Superferry under the right conditions, which moves the Senate closer to a majority that would help the project.

State Sen. Jill Tokuda, D-24th (Kailua, Kane'ohe), who had been critical of the Superferry's approach to the Senate, said her meeting with Garibaldi and Krekel was helpful. She said her main concern is to not create a precedent or loophole that might allow future development projects to skirt the state's environmental review law.

"I definitely think there is room for us to work together," Tokuda said.

State Senate Majority Leader Gary Hooser, D-7th (Kaua'i, Ni'ihau), said he believes many senators are uncomfortable about a special session. Senate Democrats will meet in private caucus on the Superferry this afternoon.

Hooser yesterday joined several other lawmakers who have called for an investigation to look into the Lingle administration's handling of the Superferry, which could include questions for the state Department of Transportation and Superferry executives.

"A huge mistake was made. The Supreme Court says that. And now they want us to fix that mistake," Hooser said.

The state Supreme Court ruled in August that the state's decision to exempt the project from an environmental assessment was in error and required an environmental review. A Maui court ruled last week that the Superferry cannot operate at Kahului Harbor during the environmental review.

Hooser also asked why the Superferry should get special treatment. "I think that when you start making special exceptions for one business, then that's a big problem," he said. "I have friends in the development business, friends who are contractors, whose projects have been delayed for months if not years because the government's slow or government interpretation of things.

"They don't get the law fixed for them."

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.