State House and Senate leaders have tentatively agreed to hear legislation to help Hawaii Superferry resume service while an environmental review is conducted and lawmakers will likely return in special session next week.

The draft proposal would allow Superferry to operate at Kahului Harbor on Maui while the state conducts a full environmental impact statement on the project's influence on all four harbors Superferry intends to serve. The Lingle administration would impose operating conditions to protect whales and other marine mammals, prevent the spread of invasive species, and preserve cultural and natural resources.

A community oversight committee would monitor the Superferry and report back to the state Legislature monthly. Lawmakers would have the option of adding operating conditions based on the reports or other information.

The state auditor would also investigate the Lingle administration's review of the Superferry, including what led to the February 2005 decision by the state Department of Transportation to exempt the project from an environmental assessment.

"I can say to all of you that the majority of the Senate, I believe, is in favor of the special session and coming back to address the problems of the Superferry," state Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), told reporters after an afternoon caucus with Senate Democrats.

State House Democrats are meeting in caucus today but had indicated last week that there is consensus for a special session to help Superferry.

"I have my fingers crossed," state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), said of whether House lawmakers agree to proceed with the draft.

OTHER BUSINESS

Hanabusa and Say would inform Gov. Linda Lingle if there is support for a special session and the governor would call lawmakers back. Although details were still being discussed last night, the special session could start next Wednesday. Informational briefings on the draft may be held on the Neighbor Islands prior to a special session, although the Senate is more interested in holding the briefings than the House because of concerns about timing.

House and Senate leaders have also tentatively agreed to consider changes to the state's extended sentencing law in special session. The state Supreme Court ruled this month that the law was unconstitutional because judges, instead of juries, determine the facts that lead to longer prison sentences.

"If we're going back in special session we might as well take care of this," said state Rep. Tommy Waters, D-51st (Lanikai, Waimanalo), chairman of the House Judiciary Committee.

The Senate also will likely take up the confirmation of Randal Lee, Lingle's nominee for a vacancy on the state's Intermediate Court of Appeals, and Lingle's Cabinet nominations of Laura H. Thielen at the state Department of Land and Natural Resources, Clayton Frank at the state Department of Public Safety and Darwin Ching at the state Department of Labor and Industrial Relations. Dozens of other Lingle nominations also may be considered.

OPERATING CONDITIONS

While consensus among House and Senate leaders is a hopeful development for Superferry after two losses in court, some lawmakers may seek amendments to the draft that more explicitly define the operating conditions. Environmentalists and activists who have questioned the project could also attack the draft and pressure lawmakers for changes.

Asked yesterday whether Superferry could live with what is being proposed, John Garibaldi, the Superferry's president and chief executive officer, and Tig Krekel, the vice chairman of J.F. Lehman & Co., the project's main investor, declined to comment directly. "We're still talking," Garibaldi said as he and Krekel continued their private meetings with senators.

Keone Kealoha, director of Malama Kaua'i, and Joel Guy, founder of HGS Productions, were also visiting with senators yesterday urging them not to go into special session to help Superferry. "We'd like to see them uphold the law as written," Kealoha said.

But Kealoha and Guy said they would likely recommend conditions if the draft moves forward. "We're not going to just sit back and let this go," Guy said.

State Sen. Shan Tsutsui, D-4th (Kahului), described the draft as weak because he said it gives too much discretion to Lingle to set the conditions. He also questioned whether lawmakers would add more conditions next session if Superferry is already back in operation. "I don't know if there is the will," he said.

State Attorney General Mark Bennett had recommended that the Department of Transportation impose the conditions but several lawmakers want it to be Lingle so they could hold her accountable if the conditions are too soft.

ACCOUNTABILITY URGED

Lingle has said, for example, that while she supported the Superferry project she had no role in the Department of Transportation's decision to exempt it from an environmental assessment. Under the draft, Lingle would not be able to distance herself from the conditions.

Hanabusa also said the Lingle administration would be in a better position to set conditions because of familiarity with the project and because state attorneys were in Maui court during testimony on issues such as whale avoidance and invasive species. The Lingle administration had argued in court that the ferry should be allowed to resume service while the state performs an environmental review.

The draft provision for a state audit was in response to several lawmakers who believe the Lingle administration has not fully explained the legal rationale or all of the factors that led to the exemption. Lingle has said that the department followed the law and that she is not aware of any legal advice on Superferry from the state Attorney General's office that has not been disclosed.

"The auditor will go in and investigate what exactly happened in the Superferry situation," Hanabusa said. "Because we believe that it is critical to understand to ensure that it doesn't happen again."

Hanabusa also said that House and Senate majority attorneys are working on draft language to address state constitutional issues since lawmakers would be overturning the courts.

"We are being asked to overrule an ongoing court proceeding and there are issues as to how that can properly be addressed," she said.

Environmentalists on Maui challenged the Lingle administration's decision to exempt the Superferry project from an environmental assessment. The state Supreme Court ruled in August that an environmental assessment is necessary. A Maui court ruled last week that Superferry could not resume service to Kahului Harbor while the review is conducted.

Ferry service to Kaua'i was suspended after protests and legal challenges.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.