California's three state licensing authorities released their emergency regulations for cannabis last month. Those rules leave it up to cities and counties to place a cap on acreage for growers seeking a license to cultivate cannabis.
"It has been a very fast and furious year with the development of these regulations," says Cara Martinson, senior legislative representative with the California State Association of Counties.
"There is a very limited opportunity to provide input into the emergency regulatory process."
Martinson tracks every stage of the cannabis rule-making process as she lobbies the Legislature on behalf of counties navigating the massive transition to a recreational cannabis market.
She found it "surprising" that the California Department of Food and Agriculture did not set a limit on the total acreage a single grower, or licensee, can hold.
Under the emergency regulations it will be up to local jurisdictions to set license and acreage limits.
"Local governments can really restrict acreage, licenses, and license-types within their own communities," concedes Martinson.
"But by lifting the cap statewide it essentially erodes the playing field," argues Martinson.
In her view, the move could create an uneven playing field between existing, smaller-scale growers and larger competitors. She argues it could cause "additional complication and potential confusion" for county programs.
Richard Parrott heads the CalCannabis division within the CDFA, the agency that will license growers. He says existing law doesn't mandate that the agency set a cap.
"If the laws required CDFA to put a cumulative canopy limit for licensees who wish to hold multiple licenses we would do that," says Parrott.
"But at the end of the day we had to look at what the law requires of us and it didn't require that of us."
The largest cultivation license is a Medium Outdoor license for a cultivation site of between 10,001 square feet and 1 acre of total canopy. Parrott notes that state rules do set a limit of one Medium Outdoor license per licensee.
The emergency regulations are now under review by the Office of Administrative Law.
How the licensing structure will actually play out is one of several unknowns for California's legal marijuana marketplace. Another is how many cannabis growers operating in the black or gray market will come into the legalized economy, and how soon.