When the federal government issued guidance regarding bankingregulations for legal marijuana businesses on Feb. 14, the news wasinitially hailed as a historic moment for pro pot supporters.

But the buzz on the streets changed after closer scrutiny of thenew guidance from the U.S. Treasury Department's Financial CrimesEnforcement network and an accompanying Feb. 14 Department ofJustice memo.

The documents lay out additional policing responsibilitiesbeyond those typically imposed by the Bank Secrecy Act and warnthat financial institutions – and marijuana merchants – could beprosecuted if they don't adhere to the eight federal priorities laid out in 2013 memo by Department ofJustice.

“This is a unique and complex issue, and only legislative changecan fully and completely address it,” FinCEN Director JenniferShasky Calvery told attendees Feb. 20 at the Florida InternationalBankers Association Anti-Money Laundering Conference in Miami. “Webelieve that FinCEN's approach best balances the multiple competinginterests currently at play.”

With 21 states and the District of Columbia now allowing someform of legal marijuana use, the Washington-based National CannabisIndustry Association predicts legal marijuana sales will top $2.5billion this year.

However, most businesses are forced to operate on a cash basis because banking laws have notkept pace.

Even with the new guidelines, credit unions are taking a guardedapproach.

Critics say one major concern is that guidance can be changedmore easily than law, especially if federal drug enforcementpriorities change under a new presidential administration.

The Northwest Credit Union Association on its website summed up the concern by stating: “The DOJ canreverse their stance on looking the other way at any time.”

Surprisingly, Colorado, the first state to legalize recreationaluse, is not leading the way with marijuana banking services,according to industry insiders,

“Without a change in the federal law, this doesn't really changeanything from our perspective or from the perspective of ourmembers,” said Scott Earl, president/CEO of the Denver-basedMountain West Credit Union Association.

Read more: Washington-based credit union considersmarijuana business accounts …

In Washington, which legalized medical marijuana in 1998 and ispreparing to distribute licenses for recreational stores in March,some institutions, including the $1.3 billion Numerica Credit Unionin Spokane Valley, are exploring the complicated issue.

“Our primary concern is about community safety in regard tobusinesses operating with a large amount of cash on a daily basis,so Numerica is evaluating how to best serve members who have amarijuana business,” said Kelli Hawkins, communications manager forthe 100,000-member institution.

“Numerica believes that an important facet to safety in ourcommunities is to allow legitimate licensed businesses to be ableto deposit their funds in a safe and secure institution,” Hawkinssaid. “To do this, we have to take our time and evaluate theprocess and procedures required, keeping our members' bestinterests in mind.”

Numerica has already established several rules to govern itsdecisions, she said.

“If we make the decision to open marijuana business accounts, wewill only accept deposits from licensed businesses,” Hawkinssaid.

“As with every decision that we make, Numerica is evaluating therisks associated with accepting these deposits, and is discussingwith our regulators and the Washington Liquor Control Board (whichwill oversee the legal marijuana licenses) methods to mitigatethose risks,” she explained. “In order to make a decision aboutopening deposit accounts for marijuana businesses, Numerica mustslowly and carefully review the issues, establish procedures todetermine what marijuana businesses to accept and establish limitson the amount of deposits.”

Numerica is not accepting those deposits now, Hawkins said, andit will take quite a while for the credit union to establish theparameters for this program.

“As we do with all business decisions, Numerica intends to enterthis business slowly and safely,” she added.

Read more: State law disparities complicate legalissues …

Another complication for depository institutions is thatregulations for legal marijuana businesses vary widely bystate.

For example, experts say, Washington's medical marijuana systemdoes not meet the eight federal priorities defined by the DOJ.

“The state legislature is working on proposals to merge medicalmarijuana within the recreational marijuana law, but until thathappens medical marijuana businesses will not be able to obtainbanking services that complies with the guidance,” said ScottJarvis, director of the Washington Department of FinancialInstitutions.

Currently in Washington, medical marijuana stores andrecreational marijuana stores are set up under entirely differentsections of the state code.

“The medical marijuana market, which was first established afteran initiative passed in 1998, has very little regulation,“ saidPhil Gardner, a spokesperson for U.S. Rep. Denny Heck(D-Wash.).

Heck, along with Rep. Ed Perlmutter (D-Colo.) and a bipartisangroup of 23 members, introduced the Marijuana Business Access toBanking Act (H.R. 2652) last year, which would create protectionsfor FIs that provide services to marijuana-related businesses. Thebill is in committee.

Read More: Perlmutter Pushes Marijuana Bill: Onsite atGAC

“Technically, the medical marijuana stores are not even storesat all – they're collective gardens and patients acquire marijuanaby becoming members of a collective garden,” Gardner explained.“You don't even need a license from the state to open a collectivegarden/storefront. Since the regulations on the medical marijuanamarket are so loose, they don't comply with the guidance laid outby the feds, and these stores are currently not going to be able tohave access to banking services.”

In contrast, the state's recreational marijuana market istightly regulated under the provisions set out under Initiative502, passed by voters in November 2012.

“Storefronts established under this regime should be able tohave access to banking and credit union services under the newguidance laid out by the federal government,” Gardner said. “TheWashington State Legislature is attempting right now to reconcilethese two regimes. This would mostly take the shape of changing themedical marijuana laws to regulated them more like the recreationalmarijuana market.”

“However, not all states are in this same situation. Forexample, I believe medical marijuana stores in California arelicensed by the state and may be able to have access to bankingservices,” he added.

For Washington institutions like Numerica, that means movingslowly.

“If we do choose to open deposit accounts for marijuanabusinesses, we will not be accepting funds from medical marijuanabusinesses,” Hawkins said. “We will only accept funds from I-502licensed businesses.”

Jarvis said other state-chartered credit unions and banks inWashington are “reviewing the guidance with an interest inproviding account services to those holding recreational marijuanalicenses.”

“I would suggest there is guarded optimism that some or manyentities and individuals that receive licenses from the WashingtonState Liquor Control Board will be able to obtain accountservices,” Jarvis said. “Lending, however, remains moreproblematic. It was not directly addressed by the guidance andfederal prudential regulators have yet to opine on the guidance orthe matter of lending.”

“Ultimately, it will be individual banks and credit unions thatmake individual decisions whether or not to provide bankingservices to this industry,” he added.