dissenting.
I must respectfully dissent from the majority’s holding that: (1) the Defendants did not waive their argument that their failure to comply with the statutory procedure for setting the initial storm water user fees was excusable under the de min-imis doctrine; and (2) the variance from the statutory procedure for setting the initial user fees was de minimis.
First, I disagree with the majority’s conclusion that the Defendants did not waive their de minimis argument. • In their Appellees’ brief, the Defendants merely stated, “Even if Ind.Code 8-1-5-7(b) is interpreted to mean that the board should conduct the public hearing instead of [the] Common Council, any departure from the permissive, rather than mandatory statutory procedure is of insufficient magnitude to render the Ordinance invalid. See, Krimendahl v. Common Council of City of Noblesville, [256 Ind. 191] 267 N.E.2d 547 (Ind.1971).” Appellees’ Br. p. 9. The Defendants did not provide any analysis or argument regarding the de minimis doctrine, let alone mention it, and did hot explain how Krimendahl applies to the facts of this case. Because the Defendants did not present a cogent argument regarding the de minimis doctrine in their Appellees’ brief, they may not do so now on rehearing. See Ind. State Bd. of Health Facility Adm’rs v. Werner, 846 *1136N.E.2d 669, 672 (Ind.Ct.App.2006) (holding that an issue raised for the first time on rehearing is waived), trans. denied. Accordingly, I would conclude that they have waived any argument regarding the application of the de minimis doctrine.
Additionally, I disagree with the majority’s holding that “the variance between the procedure set forth in statute and the procedure by which the City set the initial User Fee was de minimis.” Opinion on Rehearing p. 8. The Defendants contend that any deficiencies in the City’s setting of initial storm water user fees instead of the Board setting the user fees should be excused under the doctrine of de minimis non curat lex. See D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 900 (Ind.2003) (explaining that de minimis translates to mean that “the law does not redress trifles” or “[i]n contemporary American vernacular, it is the courts’ way of saying ‘So what?’ ”). Our Indiana Supreme Court explained that under the de minimis doctrine, “immaterial variances from prescribed procedures [will] have no legal fallout.” Id. at 903. In D & M Healthcare, our Supreme Court held that the Governor’s delivery of a veto to the General Assembly six months before the first day the legislature convened rather than on that first day they convened was an immaterial variance that did not invalidate the veto.3 Id. at 900-03. The Court explained that in applying the de minimis doctrine, “by far the most significant factor is the purpose behind the phrase to be interpreted.” Id. at 902. The Court determined that the purpose of the language regarding return of a veto “on the first day” the General Assembly is in session after an adjournment was to assure that the legislature have the earliest possible opportunity to consider, and, if it so chooses, to override the veto. Id. Because the Governor’s veto met that objective, the Court held that the variance was immaterial. Id. at 902-03.
Here, however, the variance in procedure was not immaterial. Unlike D & M Healthcare, where the deviation in the procedure involved a variance in the timing of the procedural act of delivering a veto, the deviation in the procedure of the instant case involves a variance in the entity charged with completing the procedural act of setting the storm water user fees. Indiana Code § 8-1.5-5-7, which explains the process to be followed in setting storm water user fees and the factors to be considered when establishing the amount of those user fees, explicitly provides that “[t]he board” is the entity that is to establish, assess, and collect the user fees for the operation and maintenance of a storm water system. Ind.Code § 8-1.5-5-7(b),(d),(e). The purpose of the storm water management statute is to establish an independent entity or a specialized board that has expertise in the area and that is charged with looking at the factors necessary to establish storm water user fees; holding a public hearing where the public has an opportunity to give its input on the establishment of those fees; making findings and recommendations to the “fiscal body” when obtaining approval; and installing, maintaining, and operating the storm water collection and disposal system. See Ind.Code §§ 8-1.5-5-6, 8-1.5-5-7(b),(d),(e).
The majority downplays the need for the board’s participation in the process of setting the storm water user fees and con*1137tends that the Council’s divergence from the statutory procedure for setting storm water user fees was de minimis, in part, because the “Council’s approval was required.” Opinion on Rehearing p. 5. It is true that the Council has the ultimate fiscal authority in that the board is required to obtain the approval of the Council; however, that approval is only after the board has looked at the factors necessary to establish storm water user fees, held a public hearing, and given its expert recommendation to the Council, which would presumably occur during another public hearing. To allow the Council to bypass the statutory requirement of having the board establish and assess the user fees would run contrary to the statute’s purpose of insuring the independent advice and judgment of the board. Therefore, I cannot agree with the Defendants’ contention that the substitution of another entity, such as the City’s Common Council, anywhere the statute notes that “the board” was to perform a certain act would constitute a de minimis variance from the statute. Such an interpretation would substantially change how local government works and would run contrary to the intent of the legislature and the Home Rule Act. See Ind. Code § 36-l-3-6(a) (“If there is a constitutional or statutory provision requiring a specific manner for exercising a power, a unit wanting to exercise the power must do so in that manner.”).
Therefore, I respectfully dissent from the majority’s conclusion that any variance from the precise procedure was de minimis4 Instead, I would deny the Defendants’ petition for rehearing and reaffirm the holding in our original opinion that “the City of New Haven lacked authority to establish the Storm Water Service Charge in a manner contrary to the process contained in [the] statute.” Brockmann Enterprises, L.L.C. v. City of New Haven, 861 N.E.2d 725, 728 (Ind.Ct.App.2007).
. In part, Article 5, § 14(a)(2)(D) of the Indiana Constitution provides, "In the event of a veto after final adjournment of a session of the General Assembly, such bill shall be returned by the Governor to the House in which it originated on the first day that the General Assembly is in session after such adjournment!.]"
. In determining that the variance was de minimis, the majority seems to rely upon the Defendants' assertion that the City’s Common Council had not yet adopted the provisions of Indiana Code Chapter 8-1.5-5 and had not yet established the Department of Storm Water Management at the time it set the storm water user fees, i.e., the April 14, 2004 hearing. However, as explained in our original opinion and revealed in the designated evidence, the City's Common Council had already established a Department of Storm Water Management when it enacted Ordinance No. G-04-01 in February 2004. See Brockmann Enterprises, L.L. C. v. City of New Haven, 861 N.E.2d 725, 726-27 (Ind.Cl.App.2007); Appellant’s App. p. 150; see also Ind. Code § 8 — 1.5—5—4(b) (providing that a department of storm water management is established and is controlled by a board of directors when the legislative body of a municipality adopts the provisions of the storm water management statute by ordinance). Ordinance No. G-04-02, which repealed Ordinance No. G-04-01 and set the initial storm water user fees, was not enacted until April 27, 2004. Thus, the Department was in existence at the time that the Common Council held the April 14, 2004 hearing regarding the user fees.