Any new operating agreement between the state and Hawaii Superferry should contain an "explicit and comprehensive indemnity clause" to shield the state from any liability caused by court actions that prevented the ferry from operating for the past two months, according to the latest draft of legislation to help the Superferry.

The threat of possible lawsuits by Superferry executives has been a subtext in the debate over the project's future. The draft, which is being reviewed by the state Attorney General's office, attempts to insulate the state from lawsuits while allowing Superferry to resume service while a full environmental impact statement is conducted.

State Rep. Marcus Oshiro, D-39th (Wahiawa), the chairman of the House Finance Committee, said lawmakers are trying to ensure the bill covers "all past, present and future liabilities for the state. That's a very, very important provision of this bill," he said.

State House Democrats discussed the draft in caucus yesterday and, like state Senate Democrats on Tuesday, said there is tentative agreement on the draft and consensus to go into special session. Gov. Linda Lingle would likely call lawmakers back into session starting Wednesday if the agreement holds.

Senate Democrats want to hold informational briefings on the Neighbor Islands before a special session. House Democrats would not be formally involved, although some House lawmakers could attend on their own. The briefings, if held, would be to hear public comment on the draft and any suggested amendments.

"The draft, that I think all of you have today, was very, very much supported by the members of our caucus," state House Speaker Calvin Say, D-20th (St. Louis Heights, Palolo Valley, Wilhelmina Rise), told reporters last night.

While the outline of the draft and several key components have been described over the past several days, yesterday was the first time lawmakers shared the complete text of the legislation.

The draft finds that ferry service would provide an innovative alternative for interisland travel and further the Legislature's goal of sustainability because it would produce less carbon emissions than air travel. Ferry service could also move cargo and agricultural products between the Islands faster and could foster diversified agriculture by allowing Neighbor Island farmers to get products to the O'ahu market sooner. The ferries also could be used to quickly move workers, equipment and supplies during natural disasters or other emergencies.

The draft also finds that the immediate operation of ferry service is in the public interest.

NO WAITING FOR EIS

The draft would allow Superferry to operate during an environmental review that could take one to two years. It would restore the operating agreement between the state and the Superferry for Kahului Harbor on Maui — and allow the Superferry to use other harbors — and make clear that the lack of an environmental review would not jeopardize the Superferry's operating certificate from the state's Public Utilities Commission.

The Lingle administration would impose operating conditions on the Superferry to — at a minimum — protect whales and other marine mammals, prevent the spread of invasive species, and preserve cultural and natural resources. The administration should also consider placing state agricultural inspectors and conservation enforcement officers on each ferry voyage.

Earlier suggestions that the administration's conditions not be subject to judicial or administrative review are not in the latest draft.

Lawmakers would also reserve the right to add conditions to protect the environment or communities during next session or later.

Superferry would have to agree to follow the conditions in exchange for being allowed to resume service.

OVERSIGHT TASK FORCE

Asked whether the conditions would be any different than what Superferry has already volunteered to do on its own, state House Majority Leader Kirk Caldwell, D-24th (Manoa), said he hoped they would more extensive. "I think we're hopeful that the governor will add additional conditions and not just the ones found on the Superferry Web site," he said.

The draft also creates a 13-member oversight task force of state, county, Superferry, business and environmental leaders that would monitor ferry operations and give monthly reports to the Legislature starting in December. A final report would be due before the 2009 session. The original suggestion was for a 17-member task force that would only give one final report to the Legislature.

The state auditor would conduct a performance audit of the Lingle administration's handling of the Superferry, including the February 2005 decision by the state Department of Transportation to exempt the project from an environmental assessment. The draft urges the governor and the director of the state Department of Transportation to waive any attorney-client privilege with the attorney general so the auditor would have access to all relevant information.

FERRY OFFICERS PLEASED

The state Supreme Court ruled in August that the exemption was in error and that an environmental assessment is necessary. A Maui court ruled last week that Superferry could not use Kahului Harbor until the environmental review was completed.

The draft being considered by lawmakers would overturn the Maui court's decision. But lawmakers, concerned about precedent, would help the Superferry with the new legislation and not by amending the state's environmental review law.

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, continued to meet privately with senators yesterday. Krekel said that what they had heard so far about the draft sounded encouraging.

"We just want to communicate to you guys that, really, the Legislature has just done a marvelous job in dealing with a very complex situation," Krekel told reporters.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.